“Twibel” and Emoji Death Threats: Be Careful What You Post Online

At the risk of sounding like a public service announcement, here are more reasons to be wary of what one chooses to post in a public forum. In the tug-of-war of balancing technology and legal culpability, it should come as no surprise that — in the era of Facebook divorces and arrests over comments — one’s tweets may constitute libel and a gun emoji in the wrong circumstances can be interpreted as a death threat. What’s notable about these two cases is their novelty.

  • Back in 2011, Courtney Love became the first person sued over tweets. In that instance, an Etsy purchase turned awry led to Love tweeting and commenting on the plaintiff’s Etsy page that the woman is a cocaine dealer and maybe a prostitute. That case was settled out of court.
  • In February 2012, Love was sued by her former attorney (Rhonda Holmes) over tweets Love posted that Holmes claimed constituted libel. The case went to trial and yesterday the jury ruled in Love’s favor.

In this second lawsuit brought against Kurt Cobain’s infamous widow, the plaintiff wasn’t messing around — the civil suit sought $8 million from Love. The tweets in question included Love claiming that Holmes had been “bought off” and that “they got to her.” No word on the identities of this mysterious “they” — nor did Love specify the identity of “her.” For some larger context, Holmes represented Love in a case involving fraud in Kurt Cobain’s estate. Holmes was fired when she asked Love to refrain from substance abuse. A few months later, Love went to Holmes to rehire her — and was turned down.

Before the case went to trial, Love’s initial defense can only be described as “because internet.” In her official testimony, Love stated that the tweet was supposed to be a direct message and was promptly deleted when she realized it went public. Not surprisingly, Holmes contended that the public tweet was intentional. The jury said in their ruling that while Love’s tweets “had a natural tendency to injure Holmes’ business” and did include “false information,” they believed that Love didn’t know the statements were false — which is how she won this case:

They were asked: “Did Rhonda Holmes prove by clear and convincing evidence that Courtney Love knew it was false or doubted the truth of it?” And the answer was “No.” Regarding a statement she made to reporter Alan Cross about an unnamed attorney (Holmes), the jury decided that Cross had no reason to know Holmes was indeed the subject thereof.

Defamation suits surrounding social media are nothing new. The large number of cases like Love’s can be found in this Virginia-based blog. Love’s lawyer, John Lawrence, stated that he doesn’t think Love’s case will change any laws, but the result was great for his client (obviously).

There’s no question that Courtney Love isn’t exactly a sympathetic figure for most people. Yet the lesson here is that with so many new public outlets to post one’s musings, the public nature of those outlets can leave one vulnerable to legal action if one does not use reasonable discretion in those musings. Obviously not everyone takes Twitter rants seriously enough to bring a civil suit to court over tweets, but with so many sectors of the internet constituting “public forums” now perhaps it’s best to keep one’s issues with people in their lives offline. 

  • Vice reporter’s investigation of an Instagram-based illegal RX cough syrup dealer (published October 2013) results in legal questions about whether emojis can be death threats.

It all started when Vice reporter Fletcher Babb came across a man who claimed to sell cough syrup cocktails through his Instagram account (who knew that Instagram is becoming the next Silk Road?). Babb was suspicious of the account’s veracity, so he followed the private account only to find tons of photos that openly documented the entire operation. The whole thing “seemed too public to be true,” so Babb texted the number provided on the man’s profile to discuss pricing but never actually placed an order (screenshots of the texts can be found in Babb’s article).

Problem is that the dealer appeared to interpret Babb’s texts as actual orders. And despite Babb not sharing any information in the texts regarding his name or Instagram account, the dealer found it and posted multiple photos of Babb’s public Instagram account with some questionable comments attached (three months after his interaction with Babb):

The postings continued, including a message that stated the images would be taken down once Babb forked over the money. Given that (at the time) Babb’s Instragam profile was public – and included geotagged photos – it would have been easy enough for someone to actually track him down. Babb did not take the dealer’s comments lightly. He opened his investigative piece with the following words:

As I write this, a drug dealer wants me dead. It might be spelled out in Emoji, but a death threat’s a death threat.

Nothing actually has come of this event — yet.

All this belies the question of whether or not little photos of a face with “x”s for eyes and a gun truly constitutes a death threat. While there hasn’t been a publicized court case surrounding emoji death threats in particular, it’s likely just a matter of time according to criminal justice professor Justin Patchin. He explained:

“When law enforcement investigates, they have to determine whether a person would have been reasonably threatened,” says Justin Patchin, Ph.D., a professor of criminal justice at the University of Wisconsin-Eau Claire and co-director of the Cyberbullying Research Center. In Babb’s situation, “I think a reasonable person would be threatened by that.”

And given that death threats are treated the same way online and offline, there’s a good shot that emoji will end up taking center stage in a future lawsuit. We all have fun with emoji, but — again — send little faces wisely. Bradley Shear, a social media and internet law lawyer, sums up the whole point of this piece very well:

Social media users can insulate themselves from threats similar to Babb’s in the meantime, Shear says. “People should be more careful with their digital footprint. You don’t know what people are going to do with what you’re posting. Worst case scenario, someone is utilizing it against you.”

Indeed. Have fun and be careful out there.

Hat tip to a family member who emailed information on these cases from the ABA Journal (articles linked in the piece).