It’s hard to prove libel when everything’s a joke

Twitter’s reputation for tomfoolery makes it tougher to prove a tweet meets the legal standard.


It’s hard to prove libel when everything’s a joke

Twitter’s reputation for tomfoolery makes it tougher to prove a tweet meets the legal standard.

It’s hard to prove libel when everything’s a joke

Twitter’s reputation for tomfoolery makes it tougher to prove a tweet meets the legal standard.

The comedian Vic Berger, best known for his absurdist videos on the site Super Deluxe, announced over the weekend that he was quitting Twitter due to the actions of a man named Mike Cernovich.

“I've been relentlessly libeled by Mike @Cernovich,” Berger tweeted. “He claims I'm the leader of a child sex ring on @Twitter.”

Both men are provocateurs who have jousted with each other in the past. Berger, a prankster who once hoodwinked the Jeb Bush campaign with a fake neck tattoo, made videos taunting Cernovich, an alt-right blogger who believes false rape accusations are a bigger problem than date rape and once wrote that GamerGate was "the most important battle of the culture war this century."

Cernovich responded by insinuating that Berger is involved in pedophilia.

As a result, Cernovich’s followers have sent Berger death threats and “hundreds of tweets and messages accusing him of being connected to a nonexistent Twitter pedophilia ring,” Select/All reported.

Cernovich’s rants have clearly activated his followers, and there may be evidence that his campaign damaged Berger’s reputation. However, Berger may find that a libel claim, if he decides to pursue it, is extremely hard to prove in court — and possibly even more so given the statements took place on Twitter.

There are four basic tests of libel: Is the statement false? Would the statement be perceived by a reasonable person as an assertion of fact? Did the statement do damage to a reputation? And finally, did the perpetrator realize the statement was false (or, in some cases, was the perpetrator negligent in figuring out if the statement was false)?

There is a classic hypothetical example used to illustrate libel for law students. A man writes a letter to a woman’s fiance in which he alleges inaccurately that the woman has had a series of sexual partners that her betrothed didn’t know about. The husband-to-be, scandalized and devastated, breaks off the engagement. His fiance is heartbroken, but at least she has a legal claim: The statement was false; it was expressed as fact, not opinion; the letter-writer had no reason to believe it was true; and it hurt the woman’s reputation. She can sue, and if she lives in one of the dozen or so states where libel is also a criminal offense, she can prosecute.

But what if, instead of a letter, the accuser sent a tweet?

Libel law isn’t supposed to change based on the method of communication. Under the law, a statement in a letter is no different from a statement published in a newspaper or on video. However, only statements of fact can be libel. Jokes, opinions, and even statements that the author mistakenly believed to be true are protected. So if your statement is made in a setting that judges and juries think of as a freewheeling circus for insults, gags, and ephemera, it gets tough to prove a libel claim.

“The method of communication can be relevant if it’s a setting normally reserved for jokes and opinions.”

“Courts are a little more likely to find statements on Twitter, especially statements on Twitter by random joes, to be perceived by a reasonable person to be expressing opinions,” said Eugene Volokh, a law professor at UCLA who specializes in the First Amendment. “The method of communication can be relevant if it’s a setting normally reserved for jokes and opinions.”

Volokh was not directly familiar with the Berger-Cernovich spat. However, he gave some examples of similar hypothetical statements and posited some possible libel defenses:

Statement: “I happen to know that so-and-so is a pedophile.”
Defense: If false, this statement is libelous — unless the author has reason to believe it’s true. “Reasonable mistake of fact even when you’re talking about a private figure is a defense in most cases,” Volohk said.

Statement: “This guy would probably love to have sex with little children. He doesn’t say he’s doing it, but I’ll bet he’s doing it.”
Defense: The author is expressing an opinion — “I’ll bet” — but they haven’t asserted as fact that the subject is having sex with little children.

Statement: “Based on the things this guy has said, it makes me think he’s a pedophile.”
Defense: This is similarly protected because it is an opinion about a fact, not an assertion of fact.

Statement: “The guy talks about how he’s a libertarian, and I think all libertarians are pedophiles, so he must be part of a pedophile ring.”
Defense: This is a statement of opinion, though a stupid one.

There are other reasons why a libel lawsuit is usually unproductive, Volokh said. Defamation lawsuits are long and expensive, and your average Twitter user may have no assets worth collecting. “If somebody’s libeling you and they don’t have any money, then it becomes very hard for you to sue,” he said. “The threat of damages isn’t going to be a deterrent for these people.” A lawsuit is also likely to bring more attention to the defamatory claim in the first place, especially if the user has a small following.

There have been at least a dozen notable cases of Twitter-native libel filed in the US, but as far as I could find, no jury has ever ruled that a statement made on Twitter was libel — and in almost every case, the fact that Twitter is an unserious environment was brought up either in court or in media coverage.

“One could argue that reasonable readers of most Twitter feeds do not understand ‘tweets’ to be conveying factual information,” Sam Bayard of Deadline Reporter wrote in 2009 when Courtney Love was first sued over statements she made on Twitter and elsewhere. This “extreme informality” of Twitter isn’t enough to squash a libel claim on its own, but it provides a lot of cover.

In 2009, Horizon Group Management sued tenant Amanda Bonnen for tweeting, "Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it's okay." The public reaction was skeptical. “What IS a tweet anyway?” wrote Marian Wang at Chicago Now. “Does anyone actually claim that one-liners on Twitter are truth? After all, when you tweet, you type into a text box that asks, ‘What are you doing?’ So what does an assertion on Twitter count for, anyway? Isn't it just an opinion? Isn't it stream of consciousness? Isn't it called a Twitter ‘stream’ for a reason?” A judge dismissed the case, saying the tweet was too vague to be libel.

“Does anyone actually claim that one-liners on Twitter are truth?”

Also in 2011, Portland blogger Tiffany Craig saw a commercial for Dr. Jeffrey Darm’s medical spa and treatment center. “A little bit of research into @drdarm revealed a pretty nasty complaint filed against him for attempting to trade treatment for sex in 2001,” she tweeted.

Darm sued for $1 million. The case was expected to set a precedent for what some were calling “Twibel,” until it was dismissed by a judge who ruled that "the gist" of the statement was true and any other statements were opinions based on those facts.

“The dismissal of Darm means that US courts have yet to rule on a Twibel case,” Ellyn Angelotti Kamke, an attorney in Florida who writes about media law, wrote in a paper about libel in the context of Twitter in 2013. “Due to the informal nature of the platform, as seen in these cases, much of what appears on Twitter is incapable of fulfilling the requirements of a defamation claim.”

Recently, a Twitter libel case seemed on track to go to trial. In early 2016, the actor James Woods filed a $10 million defamation suit against the pseudonymous Twitter user named “Abe List.” Abe tweeted “cocaine addict James Woods still sniffing and spouting.” Woods argued that this was damaging to his reputation. A judge allowed the initial claim to proceed, but the plaintiff, who was never unmasked, died shortly thereafter.

The defense had planned to argue that Abe’s tweet was not a statement of fact. “The defense was that it was the hyperbole of Twitter,” said Lisa Bloom, one of Abe’s attorneys. “In the context of Twitter, insults will get thrown back and forth. Our argument was that no one could really think that Abe was trying to make a factual claim that James Woods was a drug user.”

There was one case in which a claim of Twitter libel made it all the way to a jury. In 2011, Courtney Love was sued by her former attorney Rhonda Holmes over a tweet Love sent to a journalist saying Holmes was “bought off.” The jury decided in favor of Love because Love did not know the statement was false.

In a Periscope broadcast, Mike Cernovich directed the attention of more than 11,000 viewers to Vic Berger’s Twitter profile. “This could be an actual pedophile ring. They're all connected to this guy,” he said. “His Twitter handle is @VicBerger, the fourth... Vic is a creepy guy... If they're all connected together, then who knows what they're doing? These people are all, they're all like, Victor's crew... There could be an active pedophile ring on Twitter.”

Berger told Select/All that the hit to his image could be damaging to his professional reputation. However, the caginess of the language, and the fact that Cernovich has some flimsy reasons for why he believes Berger to be involved with pedophilia, could be a defense in a libel claim. In another broadcast, he said, “Vic Berger said he's going to call the police on me for basically blowing the whistle on him... They might be harming children. Who knows. They might be going after vulnerable people.” Are these opinions, or assertions of fact? Does the fact that two of Berger’s Twitter followers sent Cernovich messages depicting a child and the word “cum” in proximity constitute evidence of a pedophile ring?

“The defense was that it was the hyperbole of Twitter.”

"Twitter is just such a freakin' drama universe that I question whether anybody getting worked up about what's going on between these two guys is making any sense," Cernovich's attorney Marc Randazza told The Outline.

He compared Twitter to "a crowd of drunks after closing time all screaming at each other outside of a bar that just kicked them all out."

"It does not mean you can't have a defamation claim in such a context," he said, "but it's going to require much more than someone cherrypicking out a statement and saying 'this statement hurt me.'"

Berger has not filed a libel claim, Randazza said. Berger said he is discussing how to proceed with his lawyer.

It should be noted that Cernovich has a reputation for ginning up controversy and sending his followers stampeding after his chosen targets. Ken White, an attorney with Brown White & Osborn who also represented Abe List against James Woods, declined to be interviewed for this story when he learned it was tied to Cernovich. When asked why, he said, “I don’t want to put my kids in danger.”

There are many legal avenues that Berger can try to get Cernovich off his back, but libel won’t be the easiest.

Notable Twitter libel cases

In 2009, fashion designer Dawn Simorangkir sued Courtney Love over posts made on Twitter, Myspace, and Etsy in what is widely acknowledged to be the first instance of a libel claim involving statements made in tweets. The tweets accused Simorangkir of being a "nasty, lying, hosebag thief,” having "a history of dealing cocaine,” and having "lost all custody of her child,” among other things. There was never a ruling on whether the tweets could be taken as statements of fact. Love settled out of court for $430,000.

In 2011, Sanford Siegal, the founder of the “Cookie Diet,” sued Kim Kardashian for tweeting that the diet was unhealthy. “Dr. Siegal's Cookie Diet is falsely promoting that I'm on this diet. NOT TRUE! I would never do this unhealthy diet! I do QuickTrim!” she tweeted. “If this Dr. Siegal is lying about me being on this diet, what else are they lying about? Not cool!” Again, neither a judge nor jury ever ruled. Siegal agreed to a dismissal. There was no announcement of a settlement.

Another 2011 example: Associated Press reporter Jon Krawczynski tweeted that NBA referee William Spooner had made a call against the Rockets in order to make up for an earlier bad call against their opponents. “Ref Bill Spooner told Rambis he'd 'get it back' after a bad call. Then he made an even worse call on Rockets. That's NBA officiating folks," Krawczynski wrote. The AP settled by paying Spooner’s legal costs, deleting the tweet, and issuing a statement that said it was possible Krawczynski had misundertsood.

Earlier this year, Ciara sued her former fiance Future for statements he made on Twitter and in interviews. She dropped the case because, she said, she made too much money in 2016 to argue that her reptutation had been harmed.