Herbalife files action against Twitter seeking ID of user who sent allegedly defamatory tweets

By Hank Schultz contact

- Last updated on GMT

Image: © iStockPhoto / zakokor
Image: © iStockPhoto / zakokor

Related tags: Social media, Twitter, First amendment to the united states constitution, Herbalife

A court action filed by network marketing giant Herbalife against the online messaging firm Twitter points out the risks posed to brands by social media, said an expert on the topic. The company is trying to force Twitter to divulge the identity of a user who allegedly has made defamatory statements about Herbalife via Twitter’s service.

“It’s appropriate for Herbalife to file this action,”​ attorney Jonathan Emord, who has broad experience in matters of Constitutional law and First Amendment issues, told NutraIngredients-USA. “It’s really not surprising considering the enormous amount of defamatory content on social media these days. Sometimes this has included cases of competitors trying to damage companies’ reputations.”

On Monday Herbalife filed the petition, termed a “discovery before suit”, in district court in Illinois. Herbalife said it wants Twitter to provide IP addresses and account details of the user whose account name is @AfueraHerbaLIES. This user joined the service in January of this year and has tweeted exclusively about Herbalife. According to the court documents, the tweets included statements characterizing Herbalife management as “thieves, pill pushing frauds and bullies”.

"The twitter feed of @AfueraHerbaLIES contains not only defamatory, disparaging, and deceptive posts about Herbalife and its products, but also contains numerous insulting and offensive statements about Herbalife's management team, its members, and even federal regulators,” ​the company said in the petition.

"This is pretty straightforward. We are not going to sit back and let someone make false and defamatory statements about our company,"​ said Alan Hoffman, a representative for Herbalife, in a statement given to Reuters.

Protected speech, or not?

Emord said the ease with which people can step on their soap boxes via social media has clouded the picture in many people’s minds of the responsibilities and consequences of those actions. The First Amendment protects many kinds of speech, including in some cases speech intended to ridicule or belittle. But when those statements trend over into statements that are untrue that are presented as alleged facts and which could harm a person’s or a company’s ability to do business and continue to function in society, a line has been crossed.

“People have somehow perceived communication made via social media as less demanding as far as defamation law is concerned as communications over, for example, the phone or in the public square. We have to account for the statements we are making, including in social media. It’s possible in social media to convey an enormous amount of information with apparent anonymity, and statements presented as fact which are untrue seem to carry more weight in social media,” ​he said.

Not just any negative statement qualifies as defamation, Emord said. Free speech protections give communicators wide latitude, and companies and individual public figures are expected to have thick skins. Companies seeking to prove defamation have a higher bar to clear.

“There is ordinarily a presumption of innocence in the the sense that if language is capable of multiple interpretations, one of which is innocent of defamatory content, most jurisdictions will bend over backwards to maintain the free flow of information. That includes ribald or vociferous communications,”​ Emord said.

“For example, the statement, ‘they sell products that are junk’ is fair game. Claiming that their products contain poisonous ingredients is something else,” ​he said.

Social Media © backtasan1
A complicating factor is that defamatory statements made via social media gain a life of their own via retweeting or other forms of sharing. Image: © iStockPhoto / backtasan1

Rapidity of communication complicates remediation

Emord said a complicating factor in the regulation of speech and the flow of information is that defamatory statements made via social media gain a life of their own via retweeting or other forms of sharing. It’s becomes almost impossible for a company or an individual to reach the same audience with a rebuttal. So companies like Herbalife might seek to nip a situation in the bud, rather than taking the traditional course of writing an op-ed piece or an open letter in a newspaper.

“It’s just a different world. The downside is that when someone is defamed it can run through an entire community rapidly. Deciding whether to take an action like Herbalife has really depends on how seriously the company wants to be taken. They need to send a message to the entire community out there that if you are going to talk about us, you’d better have your facts straight because if you lie about us, we’ll take you to court,”​ Emord said.

“Courts don’t issue judgements against speech. They can’t prevent people from saying the same things again. The best companies can hope for in these cases is to create some kind of deterrent,”​ he said.

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