Levi Johnston's Lawyers Threaten Twitter, Despite No Legal Basis

from the the-law?-what's-that? dept

Mon, Nov 9th 2009 2:26pm — Mike Masnick

Last week, Conan O'Brien had William Shatner stop by and read what was believed (at the time) to be twitter messages by Levi Johnston, the former boyfriend to Sarah Palin's daughter Bristol (and father of Bristol's child). O'Brien has done this before, having Shatner read out Sarah Palin's twitter messages, as spoken word poetry. It's an amusing gimmick. The only problem this time around was that the tweets weren't actually by Johnston, but an impostor. O'Brien quickly apologized. Fair enough.

However, what caught my attention was that Johnston's lawyers didn't just threaten O'Brien, but they threatened Twitter itself:

"My client, Levi Johnston, is being impersonated on your media (Twitter) and this is leading to libel and slanderous statements being attributed to him. ... We want you to put an immediate end to this illegal activity. ... You are being used as a medium to promote this illegality and we want immediate action. ... You are now on notice and must take steps to put an end to what is clearly against the law and against your policy. ... We want to know what steps you will be taking to correct what is clearly a problem which is escalating."

Now, you can understand why they were upset, and Twitter is usually pretty good at responding to such requests and disabling the accounts (sometimes even going too far). However, the claim that Twitter is now "on notice and must take steps" to end the account is simply not true. Twitter, as the service provider, is protected against such claims and has no specific obligation under the law to change things, no matter how much "notice" his lawyers give. You would think that Johnston's lawyers would understand that -- and that they would be aware of earlier attempts, like the one by Tony La Russa to blame Twitter for an impostor, in which La Russa was forced to learn why Twitter is not liable.

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Filed Under: conan o'brien, levi johnston, section 230, william shatner
Companies: twitter

18 Comments

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Matt (profile), 9 Nov 2009 @ 2:37pm

Don't sue the Shat!
You can take the Alaskan out of the trailer park, ...

The worst part about this whole affair is that it CONTINUES to keep Palin et al. in the news. The world will be better when this particular episode in US history scabs over.
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Anonymous Coward, 9 Nov 2009 @ 2:40pm

"You would think that Johnston's lawyers would understand that..."

Why in the world would you think that?
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Anonymous Coward, 9 Nov 2009 @ 2:57pm

Simple solution = delete Levi Johnston's account. If he can't access Twitter, then no one can impersonate him via Twitter. AFAIK, Twitter has no obligation to provide service to any particular person.
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Anonymous Coward, 9 Nov 2009 @ 3:12pm

Actually, based on this:

http://adage.com/digital/article?article_id=140377

I would say that twitter is showing to be very poor at handling obvious situations.

Come on Mike, don't always take the side of new media just to take their side. It makes you look like a shill.
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Anonymous Coward, 9 Nov 2009 @ 3:42pm

The company signed up for @TheHomeDepot instead, but in the meantime alerted Twitter it wanted the handle, which wasn't being used. "They worked with us to give us control of Twitter.com/HomeDepot," said Ms. Molinari, but it took a full year

A YEAR? Who are they kidding?
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The Groove Tiger (profile), 9 Nov 2009 @ 3:47pm

Instead of a lawsuit, they should give Twitter a prize... like a nobel prize or something. A piece of software that can impersonate a person is pretty hardcore. Soon we'll have Twitter-droids walking around the streets like real humans.
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Anonymous Coward, 9 Nov 2009 @ 4:45pm

I am sure this will now stop all attempts to make fun of Levi on the interweb. Well played lawyers. Well played.
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Keep the Change, 9 Nov 2009 @ 5:23pm

Keep the Change
"You would think that Johnston's lawyers would understand that..."

Of course they understand!
Their client approaches them and say's, "these people are making me feel uncomfortable, do something about it, we need to change the situation."

Mr BigShot Lawyer say's, " sure we can make it real uncomfortable for them, use real big words and wave a big legal stick at them all."

Mr Levi Client now feels more comfortable and now also feels like a big shot, though its costing him a small fortune.

Does Mr. BigShot Lawyer know they have no chance in hell of winning such a case?
Most probably, but what's that got to do with it?

They respond to a clients wishes and charge accordingly.
Sometime's they neglect to inform the client of his chances and collect the fees. But the client get's what he paid for and is satisfied. Why? Because the problem went away.

In many instances a lawyer will say to his client, " I don't think we can win, but we can cause them lot's of grief". Client say's, " hell yes, make the Bas#*r%$ suffer!"

So, who's the real TWIT here?

Want real change, keep it!
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Anonymous Coward, 9 Nov 2009 @ 6:42pm

Re: Keep the Change
Oh hell, does this mean more nude pics of Levi to pay the lawyers?
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Luci, 9 Nov 2009 @ 7:08pm

Re:
And what obligation does Twitter, a private company, have to hand these over? None. Why? Because this isn't advertising, so it's not covered by those laws. It'd be like me taking Microsoft Supervisor for a handle on a messaging platform. There's no real recourse if they don't want to do anything about it. The fact that they /do/ reflects well on them.
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Kevin, 9 Nov 2009 @ 7:22pm

Not so Fast
Actually it isn't an open and shut case and there is legal liability to the publisher, and if Twitter is deemed the publisher of the defamatory statements, it can be held liable. To determine if someone is a publisher, you look at editorial control. This will vary by jurisdiction, but some have even said that having word filters (to prevent cursing) may be editorial control making the website, forum, ect... a publisher and liable.

"Stratton Oakmont v. Prodigy, 1995 -- Stratton Oakmont is an investment banking group based in New York. One one of Prodigy's bulletin boards, MoneyTalk, someone anonymously posted a mesage saying that Stratton engaged in criminal fraud. Stratton Oakmont sued Prodigy claiming that Prodigy was a "publisher" of the MoneyTalk bulletin board and thus was liable for its content. Prodigy said it was only a passive conduit for material posted on its bulletin boards, but the problem was that it used automatic editorial filters for obscene words, and therefore acted as a publisher. The New York federal court said that since Prodigy exercised some editorial control, it was liable as a publisher of the defamatory statements."

http://www.runet.edu/~wkovarik/class/law/1.5libel.html
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KEEP THOSE PICTURES, 9 Nov 2009 @ 10:12pm

Re: Re: Keep the Change
Oh Hell, yuk! You can definitely keep those. :(

@ Not So Fast - Kevin

Nice one, you just blew a major hole in some ones ego and cost some one a nice chunk of change. Me likes your thinking.
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Kevin, 10 Nov 2009 @ 4:08am

Re: Re: Re: Keep the Change
What will be interesting is if the Plaintiff argues that the 140 Character limit put in place by Twitter is an act of editorial control making Twitter a publisher. I think this argument is weaker than spam and vulgarity filters, but it might survive summary judgment. Concerning Notice, if the plaintiff is alleging Twitter with contributory liability, than Notice does become an important issue. If Twitter was given notice of the specific defamation and continued to allow it to be published, it may be found contributorily liable.
Copyright in the Internet Age Blog
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Kevin, 10 Nov 2009 @ 4:18am

ISP
Techdirt is correct that ISPs are protected from libel suits as seen in the case Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).
However, Twitter is not an ISP! "An ISP (Internet Service Provider) is a company that collects a monthly or yearly fee in exchange for providing the subscriber with Internet access." (wisegeek definition). Twitter does not provide access to the internet, it merely is a web based business that provides a service. This is a huge difference and prevents Twitter from having the legal protections afforded to ISPs like AOL and Comcast.
Copyright in the Internet Age Blog
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Anonymous Coward, 10 Nov 2009 @ 6:24am

Why are people dumb enough to believe that somebody is who they say they are just because they Twitter as such? Haven't they been on a blind date before?
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nasch (profile), 10 Nov 2009 @ 7:09am

Re: ISP
However, Twitter is not an ISP!

Fortunately, the Communications Decency Act's safe harbor provisions (section 230) do not apply only to ISPs:

"No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

Twitter is quite clearly an interactive computer service, so they're in good shape legally.
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Kevin, 10 Nov 2009 @ 10:10am

Re: Re: ISP
Touche, Your right the CDA safe harbor should protect twitter from defamation.

Section 230 explicitly exempts from its coverage criminal law, communications privacy law, and "intellectual property claims." So unless Levi also has one of these claims, Twitter should be fine.
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Jim Sadler, 10 Nov 2009 @ 4:20pm

Baby Rape
I see no reason that anyone should gossip about the rumor that Sarah Palin rapes babies. After all there has never been any evidence at all that it is true that she rapes babies. All of us should shut up and stand back and wait and see if the authorities bring her to trail for raping babies. It seems very unlikely to me that she will ever be charged by a prosecutor for raping babies. After all, if she really does rape babies it certainly would not be in public or in view of others that could testify against her. We'll just have to take her word that she does not rape babies.
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