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TSN Twitter flap highlights the liability users have for what they tweet

TSN Twitter flap highlights the liability users have for what they tweet

Canadians this week got a short, sharp object lesson in the pitfalls of unfiltered social media courtesy of some Toronto Maple Leafs and a Canadian-born Hollywood starlet.

Most of us by now understand the perils of posting potentially embarrassing things about ourselves or hurtful things about others on Twitter, Facebook or on other social platforms, even if some people do it anyway.

But the legal consequences of saying something nasty came home to Leafs fan Anthony Adragna.

While watching the TSN sports channel’s NHL trade deadline coverage on Monday, Adragna tweeted what he apparently considered a droll remark about the personal relationships of Leafs’ captain Dion Pheneuf, his wife actress Elisha Cuthbert and forward Leafs’ Joffrey Lupul.

The tweet ended up as part of the Twitter feed TSN was scrolling across the screen during its program.

Lupul didn’t take long to respond to the nasty piece of gossip:

“TSN just a poor mans TMZ. Embarrassing,” he tweeted.

But that wasn’t the end of it. By Tuesday, a law firm had sent TSN and Adragna letters on behalf of the two players and Cuthbert demanding apologies, removal of the tweet and payment of “a significant amount of damages,” or face a lawsuit.

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The first two demands were quickly fulfilled, but it’s not clear whether any money will change hands.

Vancouver lawyer Peter Gall, acting for the players and Cuthbert, told Yahoo Canada News his firm is still in discussions with the parties.

“We’re hopeful and confident it will all be resolved satisfactorily,” he said.

TSN not saying how tweets were reviewed before posting

TSN initially told reporters it had protocols in place to filter out inappropriate social media posts but would not explain how Adragna’s tweet made it on air. A spokesman for the network would not respond to a Yahoo Canada News query whether anyone actively reviewed tweets before including them in the scroll.

For his part, Adragna seemed not to grasp the potential jeopardy he’d put himself under. On subsequent posts Monday, he expressed surprise TSN had aired his tweet, then he passed it off as a joke. Finally, he tried to blame the broadcaster.

“What’s all this crap about a lawsuit,” he tweeted. “If anyone is getting sued its TSN for being negligent not me.”

Later he tweeted: “My words and actions are my fault I’ve admitted that many times. Those words actually getting on air is out of my control.”

And that is the problem in a nutshell. Twitter users, Facebook users and trolls who plant provocative comments on websites often don’t seem to understand that a defamatory statement made on social media or elsewhere on the Internet carries the same potential for legal action as if they’d made the same remark at a cocktail party or in a letter.

Two of Canada’s top media lawyers say “cyber libel” cases now outstrip those filed against so-called mainstream news organizations in recent years.

“Facebook postings, tweets, blogs, it’s a lot more,” Richard Dearden, a partner with the Ottawa law firm Gowlings, told Yahoo Canada News. “That’s the trend.”

The laws covering defamation and libel aren’t suspended in cyberspace, said Vancouver lawyer Roger McConchie.

“A tweet is just as capable of being defamatory as a 140-character letter or 140-character poster that somebody might hold up outside a place of business,” he said.

Not everyone who posts something defamatory gets a lawyer’s letter. There’s just too much of it, said McConchie, who’s been tracking cyber-libel cases for more than a decade.

“The volume of libel on the Internet is probably beyond calculation,” he said.

Hard to expunge libelous statements on the Internet

The persistence of defamatory material on the web has made the problem more insidious than in mainstream media. Newspaper archives can be purged, TV video recordings erased. But there’s no guarantee every adverse reference on the web can be excised.

“That stuff can be searched and found and it never goes away,” said Dearden. “It’s literally like a whack-a-mole game, except it’s not a game. The consequences can be really serious to someone’s reputation.”

Until recently, Internet libel case law mostly has been connected to material found on websites and blogs.

“There have been some very large damage awards arising out of cyber libel,” McConchie said.

But the increasing ubiquity of social media has resulted in more claims, though he said he’s not aware of any major damage awards related to Twitter posts in Canada so far.

There have been cases elsewhere, such as one in Britain where a mayor was forced to pay the equivalent of about $5,500 to a political rival for claiming in a tweet he’d been removed from a polling station by police.

U.S. singer Courtney Love has faced three social media-based libel cases, winning one last year against an attorney who claimed she’d been defamed. However, she’s battled fashion designer Dawn Simorangkir twice, first paying her US$430,000 for comments Love made on Twitter, only to be sued again for things she’d posted about the designer on Pinterest.

Most cases are more mundane.

“You can have an instance where a parent is upset at a teacher and fires off angry emails and copies all kinds of people or does a Facebook message trashing somebody,” said Dearden. “It’s individuals against individuals.”

Twitter responses to Adragna’s dilemma suggest at least some social media users don’t understand they can be held liable for things they tweet and re-tweet.

“Lol its not defamation relax dude,” someone named Tom tweeted to Adragna Monday. Few people on the thread agreed and Tom subsequently walked it back a little after the lawyer’s letters went out, suggesting an apology would take care of it.

And in reality, he wasn’t far wrong. Most defamed plaintiffs aren’t interested in a drawn out court case, McConchie said. A prompt apology and removal of the offending post often settles the issue.

“A lot of people don’t like doing that,” he said. “I think people should get used to doing it when it’s appropriate.”

Harder to challenge defamatory cross-border social media posts

Things get more complicated when social media posts come from outside the country. It might be difficult to learn the identity of an anonymous defamer outside Canada.

“Then even if you do acquire that information and you’re a Canadian-based plaintiff, how and when could you enforce any libel judgment you might get in a Canadian court against that individual in another jurisdiction?” said McConchie.

The other loose legal thread in this arena is the liability of media outlets like TSN that display defamatory social media posts. The law here is a little less clear cut the media lawyers say.

“We’re in pioneer territory on who’s liable for social media publications,” said Dearden.

Normally, anyone who repeats or republishes a defamatory statement is equally liable in legal terms. But the sheer volume of material, whether it’s social media or online comments, makes policing every post nearly impossible.

Dearden won a landmark case in the Supreme Court of Canada in 2011, Crookes vs. Newton, which determined that hyperlinks embedded in a web post that led to potentially defamatory material didn’t make the creator of the post liable for that material. The links were akin to footnotes in a book, the court found, pointing to sources of information with no evidence a reader had actually looked at the offending material.

Common law includes the principle of innocent dissemination, which was used as a defence to protect booksellers from liability for unknowingly distributing books containing defamatory statements – as long as they stopped selling them once the defamation was reported.

Likewise, Dearden said, it’s not realistic for content-hosting platforms, including Google, Facebook and Twitter to screen every piece of content they carry.

U.S. law, for instance, protects web hosts, including social media, from liability because it’s unreasonable to expect them to police the millions of posts they carry. But if you notify them of something defamatory, they’re obliged to remove quickly or risk being found legally liable for its publication.

But in Canada the issue of liability for social media platforms remains unresolved, said Dearden.

“Here it’s still a live issue,” he said. “These are pioneer issues that have yet to be decided by the Supreme Court of Canada. One day they will.”

Innocent dissemination defence tough on the web

McConchie doubts an innocent dissemination defence would fly in this case, given “the amount of tripe and trash” found on the web.

“Someone could come along in court and say you knew that if all you were doing is randomly streaming from this gutter of virulent speech a series of tweets, that some of them were going to be defamatory,” he said.

It’s not clear whether TSN’s “protocols” included a human editor screening the tweets or whether software was used to sideline dubious posts.

“If someone came to me and said, ‘look, I’m thinking of running tweets on screen during my broadcast,’ I would say, well don’t count on being exonerated if you decide to not screen them before publication,” McConchie said.

“I think you’d be better off having somebody take a look at what it is you’re going to send up in the next seven or eight seconds.”

Most reporters have at least some training in libel and defamation issues, either in journalism school or through their employers. But social media has turned ordinary people into broadcasters, often without being aware of their liability.

Average people can recognize harmful speech or something potentially defamatory, said McConchie. What they can’t do without training is determine when it’s OK to post that speech under the handful of allowed legal defences.

As for McConchi’s stance on Adragna’s tweet: “You’d have to be pretty out of touch with reality to think there might not be a problem with that.”

On that, he and Dearden agree: “That was a point blank false, stupid statement.”

For its part, TSN has said it will no longer display live tweets on its shows.