Perhaps inevitably, less than a week into the 2012 London Olympics, Twitter is finding itself at the center of numerous free speech controversies: two athletes, a Greek triple jumper and a Swiss soccer player, have been expelled from the Games because of allegedly racist tweets; athletes are turning to Twitter to complain about the IOC’s rules regarding marketing; British journalist Guy Adams was suspended and then reinstated to Twitter after criticism of NBC’s coverage of the Games. However, the Twitter storm with the biggest implications for free speech online is an incident involving offensive tweets directed at British diver Tom Daley.
A 17-year-old from the English county of Dorset sent a tweet to Daley, a competitor in the synchronized diving event, stating, “you let your dad down i hope you know that.” Daley’s father died last year from brain cancer. A later tweet sent from the same account threatened to drown Daley in a pool.
Such tweets may be offenses under section 127 of the U.K.’s Communications Act of 2003 (which forbids public electronic communications of an “indecent, obscene or menacing character”) or the Malicious Communications Act of 1988 (which prohibits sending letters, including electronic communications, intended to cause “distress or anxiety”). Although it is unclear which tweet they were responding to, the Dorset police arrested the teenager under the Malicious Communications Act and issued a harassment warning in connection with the tweets. He has been bailed to return to the police station at a later date while the police investigate other tweets made from his account.
While highlighting the different approaches to offensive speech taken in the U.S. and Great Britain, the most interesting and potentially vexing issue of the affair is the fact that Daley retweeted the teenager’s first tweet. Although all tweets are effectively public broadcasts (unless the originating account is private), the audience for the first tweet was limited to Daley and Twitter users who follow the tweeter. By retweeting the message, Daley exponentially expanded the audience by broadcasting the tweet not only to his several hundred thousand followers, but potentially to all users who follow them and so on and so on. It was apparently the retweeting that alerted the police to the original tweet.
The act of retweeting has enormous implications for online speech. For example, while it is likely that section 230 of the Communications Decency Act would apply to shield a retweeter from liability for the simple act of retweeting a tweet from a third party (although it wouldn’t apply if this situation arose under a comparable U.S. law because section 230 does not apply to criminal liability), would adding a comment to the retweet remove it from section 230 protection? In retweeting, Daley commented, “After giving it my all… you get idiots sending me this…” Courts have not yet clarified how much editing or commentary is necessary to strip away the protections of section 230. Furthermore, how relevant would retweeting be to the measure of damages, particularly if the alleged victim of the offending speech was the person who retweeted the message?