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(Graphic is courtesy of Kanate and freeditialphotos.net)

By now, the tweet that got passenger Duff Watson and his family removed from a Southwest Airlines flight is old news. Just to recap, though, according to news sources, Mr. Watson had a bit of a tiff with the gate agent before boarding the plane. While he was in line waiting to board, Mr. Watson (according to WCC in Minneapolis) tweeted something close to:

Wow, rudest agent in Denver. Kimberly S. gate C39, not happy @SWA.

I believe that we’re all still a bit murky on how “Kimberly C. the gate agent” became aware of Mr. Watson’s tweet. As if that, in and of itself, isn’t creepy enough, the Watson family was pulled off of the plane and brought back to the gate. Once off the plane, Mr. Watson was given a “choice”: delete the critical tweet or he may not fly and the police will be called.  Needless to say, Mr. Watson deleted his tweet to get wherever it was that he needed to be going (a USAToday video interview and update on the situation is here).

While there is quite a bit of news coverage on Mr. Watson’s Southwest “TwitterGate” ordeal, we haven’t seen much in terms of looking at the situation from a legal perspective. We can’t predict whether the TwitterGate fracas will result in a lawsuit and, if so, who would prevail, but some established legal concepts would likely come into play.

The first consideration is that “Kimberly C. the gate agent” claims she felt threatened as a result of Mr. Watson’s tweet.  Earlier this year, Seth Jaffe at Norton Rose Fulbright (a law firm) published an article entitled “Beware of the Threatening Tweet.” The article was in response to a news story involving a fourteen-year old Dutch girl who tweeted a threat to American Airlines. Although the tweet turned out to be a teenage prank, the airlines took the threat quite seriously and got the authorities in Rotterdam involved.

Mr. Jaffe’s article notes that in the United States, 18 U.S.C. Section 875 is available to law enforcement to deal with threats of bodily harm, kidnapping and threats against property.  Also, one portion of the statute, Section 875(d), addresses threats against reputation with an extortion component. 18 U.S.C. Section 875 covers interstate phone calls, as well as “other communications.”

It’s unlikely, however that Ms. “Kimberly C. the gate agent” could use Section 875 against Mr. Watson. First, 18 U.S.C. 875 is a criminal statute. Second, there was no threat to extort the gate agent, much less any words that normal folks would consider to be a “threat.”

As noted in Modern Prior Restraints, (from Major Principles of Media Law by W. Overbeck and G. Belmas, courtesy of Cengage Learning) though, a troubling aspect of modern law is the inclusion of statutes against “hate speech.” More than forty states in the U.S. have some form of law that criminalizes what is termed “hate speech.” States, counties and municipalities often justify imposing such laws on the basis of the “Fighting Words Doctrine.” The doctrine arose from a 1942 Supreme Court case (Chaplinsky v. New Hampshire) involving a man who had called someone a “damned fascist.” At the time, Hitler was marching across Europe and the term “fascist” was construed to be a “fighting word”. Thus, the Court upheld the conviction based on the notion that the defendant’s words were likely to incite violence.

In 1992, though, the Court, in R.A.V. v. St. Paul, considered a cross-burning case brought upon a City of St. Paul ordinance forbidding hate speech. The Court noted that the city’s case could been based on other offenses, such as arson and trespassing, but it was not. Ultimately, the Court ruled that, while violence is of course prohibited, “hate speech” itself cannot be banned on the basis of its content. Specifically, Justice Scalia said that governments may not punish those who communicate messages of racial, gender or religious intolerance merely because those ideas are offensive and emotionally painful to those in the targeted group.

Getting back to Southwest Airlines’ “TwitterGate”, its unlikely that Ms. “Kimberly C. the gate agent” could have made the required showing of intimidation or imminent violence sufficient to initiate prosecution against Mr. Watson for his tweet.

We can guess that most reasonable people are unlikely to view Mr. Watson’s tweet as being threatening. But Seth Jaffe in his article makes a good point in noting that “questionable” posts or tweets may violate a social media site’s terms of use.  Thus someone such as Ms. “Kimberly C. the gate agent” could request removal. Also, while Mr. Watson’s tweet certainly seemed to us to be an opinion, the gate agent could make a claim that the tweet was defamatory, leaving it for a court to sort out.

While discussing Mr. Watson’s TwitterGate ordeal, the question came up as to whether Mr. Watson has any cause of action against Southwest. That issue becomes a bit tricky since Southwest Airlines isn’t a governmental entity. There’s also the possibility that a court could construe Mr. Watson’s act of deleting his tweet as voluntary (although, certainly, reasonable minds could differ on that).  Hopefully, Mr. Watson and his family will at least get some free tickets out of their ordeal.

Travis Crabtree and Melissa Krasnow‘s February 2014 article in JD Supra, set out some good advice and “do’s and don’ts” for both consumers and businesses with regard to reviews on social media. Jamie Nafziger of Dorsey & Whitney was interviewed in the article and some of her pointers include:

The most important things users can do to protect themselves from liability for negative reviews are to (1) be sure their posts contain honest opinions and (2) be sure that to the extent posts contain facts, the facts are truthful. If users are including facts, they should link to their sources, if possible. Lying or exaggerating can land a user in court.  Posting flaming remarks, abusive comments, or lies also may tarnish the user’s reputation or result in the user being banned from participating in a social network. Don’t stop posting reviews – just be sure your reviews are truthful and based on your personal experience!

Surprisingly (but maybe not so much as a sign of the times), Lynda Zadrin-Symes of Knobbe Martens suggests that people who post a lot of online reviews should consider carrying insurance to protect themselves against potential libel suits. She notes that this type of coverage can be provided via umbrella policies, and some homeowner’s policies and businesses policies.

While Mr. Watson’s story is fairly extreme, no one who uses social media is immune to a potential run-in with a disgruntled individual or business. For example, we rented a vacation condo recently and the owner not only requested that we agree to not post any negative reviews anywhere, but that we agree not to discuss our rental experience with ANYONE. The penalty for doing so was a hefty $1000 fee for each review. Of course, we refused to sign off on those conditions.

The moral of the story is remember that contract law may apply to many aspects of a business transaction, including negative reviews, so be sure you carefully read before you sign anything or agree to a company’s terms of service.

That said, what do you think about Mr. Watson’s experience?

This post is intended to convey general information only and should not be construed as a legal opinion or legal advice.  We disclaim liability for any errors or omissions and readers should not take any action that relies upon the information contained herein. Readers should consult their own attorney concerning their own situation and  any specific legal questions. The writing herein does not establish any form of attorney-client relationship with us.

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