To Tweet or Not to Tweet? Twitter's Shaky Legal Ground

Ashton Kutcher has one million Twitter followers. He reached this milestone by participating in a race with news network CNN, of all possible outlets, to one million.

It was an epic battle, along the lines of Foreman vs. Ali, Hulk Hogan vs. Andre the Giant, and so on and so forth down the line. Forget the fact that many diehard journalists think CNN pandering to the likes of Ashton Kutcher with on-air pleas for more Twitter followers, and video responses from Larry King himself was pathetic and entirely damaging to their reputation as a respectable news outlet. That's not the point. The most important piece of information to bring home from this is that Twitter is the social media darling of today, and it's here to stay. That is, until six months from now when Flugle takes over, then Swishle and then Mybook. It's the nature of the medium to be popular. If companies like CNN and celebrities like Ashton Kutcher are going to use Twitter to bolster their popularity rating, then there are at least a few things they need to look out for.

Twitter might limit its posters to 140 characters with which to weave their posts and replies, but that doesn't mean a lot can't be said in such a seemingly small space. More than a few companies have taken to Twitter knowing that such a small message is exactly how they want to reach their customers, just ask Whole Foods or Zappos, two companies with some of the largest Twitter followings.

However, if someone says the wrong thing or the message is misinterpreted, Twitter leaves a company or an individual just as liable as any other medium. While many media laws on the internet are still a gray area, that doesn't mean Twitter is a free zone for companies to let bullets fly and not expect some sort of repercussion. We haven't heard too much about Twitter being used in the courts just yet, but it is a definitive source for public record. Anything said by a company or an individual on Twitter at any time leaves 140 characters of responsibility in the ether, to be used for or against them as necessary. Twitter posts can be subpoenaed in court just like blog posts and emails.

Dallas Mavericks owner Mark Cuban knows exactly what I'm talking about. He was fined $25,000 by the NBA for tweeting his displeasure with the referee's calls in a March 27 game against the Denver Nuggets. This specific situation is tied to NBA rules concerning owners and what they are or aren't allowed to say about officials. Cuban never saw the courts, but he did pay the fine. Courtney Love, of the rock band Hole, however, did see the courts. Her Twitter remarks against Dawn Simorangkar left her with a lawsuit for defamation.

Defamation is a serious issue for the Twitter celebrity, journalist or organization, as the medium itself is designed to be as casual as can be possible. One-hundred-forty characters is just enough to blurt out one sentence of emotional response to an unhappy situation, and within hours, it's been retweeted or posted again by others by hundreds of people.

Social media is exactly that in this situation: social. And it's hard for anyone to take back their remarks once they've been posted.

Should companies forego Twitter altogether in fear that they're stepping into murky legal waters?

As a Twitter poster I would see it as a shame, but some companies just aren't ready for the shaky ground that Twitter offers. Not to mention, it's a difficult enough task to put someone in charge of a company press release or blog, but ask them to start posting 140 characters and build an actual following without using some shed of their own personality? That's an impossibility.

The range of other legal issues with Twitter is rife with difficult situations for companies and their employees. Individuals who fraudulently post as celebrities or companies are growing all over the network, and until a company asks Twitter to stop the poster or the person is found out, these individuals can get companies in a heap of trouble. Also, many celebrities and companies rely on using ghost writers-something frowned on by the twitter community, for maintaining their Twitter accounts and posts. In this situation, who assumes the liability for any post that might be found to be controversial, the celebrity who owns the account, or the person assuming the role of poster?

Throw in the wrongful termination suits that will undoubtedly begin to fall upon Tweeps, Twitter posters, and those who get in trouble for violating privacy laws or trade secrets in their tweets, and the amount of Twitter litigation in the year to come seems to keep growing and growing.

How then, can this all be solved? Attorney Douglas E. Winter told the National Law Journal that caution is best.

"Be careful what you say. Twitter, like any electronic communication tool, is subject to a wide range of potential liability. I basically tell people that, yes, it's a new tool, and it's very trendy. But no electronic tool should be treated any differently as they emerge," Winter said.

Winter is a pretty smart man, but I'm not quite as polite. I think he's right to an extent. Being careful doesn't mean being boring, and for any company to succeed in social media they need the stones to embrace the social aspect. They've got to put a face out there in front of their logo, or they need to stick with the mainstream, stale as it may be.

Anyone making Twitter posts for a company heed these words; keep your emotions in check but your wittiness within arm's reach, and make sure the guy at the top of the ladder knows that if a hammer falls because of something you've tweeted, it's not just your head on the chopping block.