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Julie Hilden

Libel by Twitter? The Suit Against Kim Kardashian over the "Cookie Diet"


Monday, January 4, 2010

Twitter's famous 140-character limit for "tweets" – that is, posted comments – has a number of advantages, such as allowing readers to access succinct updates about people and events they are following, in something close to real time.

But the limit may also have a serious – and probably unanticipated – downside: It may make Twitter a trap for the unwary when it comes to libel suits.

In this column, I'll consider the suit that was recently filed against Kim Kardashian, based on her negative comments about the COOKIE DIET®, as a possible example of that trap.

The Lawsuit, and the Statements at Issue

On December 28, Dr. Sanford Siegal filed a defamation complaint against Kardashian in state court in Florida, on behalf of himself and the company through which he distributes his COOKIE DIET® products.

The choice of Florida isn't surprising: Siegal resides in Florida, and most defamation suits are brought where the plaintiff resides -- on the ground that his or her reputation is centered there. Moreover, Siegal's company is a Florida corporation.

Readers may wonder if it's fair for California resident Kardashian to be forced to go to Florida to litigate. But case law suggests that it does not violate constitutional due process to require a resident of another state to come to Florida for a lawsuit, when the suit's allegation is that she directed a tortious comment toward a plaintiff known to reside in Florida.

The basic idea is that if you target someone in Florida, you can be required to resolve that dispute in Florida. (The problem with this idea, though, is that if the comment turns out not to be libelous, then the defendant still has had to bear the cost and inconvenience of the Florida forum, for no good reason.)

The beginning of the complaint against Kardashian chronicles what seems to have been a misunderstanding: A third party claimed, in an online article, that Kardashian had been on Siegal's diet. Siegal's site then linked to the third party's article.

Then, the use of the link led Kardashian to post the following two tweets:

"Dr. Siegal's Cookie Diet is falsely promoting that I'm on this diet. NOT TRUE! I would never do this unhealthy diet! I do Quick Trim!"

"If this Dr. Siegal is lying about me being on this diet, what else are they lying about? Not cool!"

If Kardashian had not claimed that the diet was "unhealthy," it seems likely that an agreed-upon joint statement could have resolved this dispute. Apparently, Siegal and his company made an honest mistake in relying on (and linking to) third-party statements claiming Kardashian was on the diet. Then, it seems that Kardashian, in turn, made an honest mistake in taking Siegal's honest mistake to be an outright lie.

Thus, a brief joint statement noting that everyone involved agrees that Kardashian has never been on Siegal's diet, and that no one did anything wrong, might have been the end of the matter.

But there's little chance of a joint statement now -- for the "unhealthy" claim opened another can of worms, as I will explain.

Is Calling a Product "Unhealthy" a Statement of Fact, or of Opinion?

Most of us toss around words like "unhealthy" every day without thinking much about it. But when it comes to libel law, such words can be bombshells that trigger liability.

That's because such words tread the boundary between statements of opinion – which generally cannot be the basis for a libel suit – and statements of fact, which can trigger high-dollar liability.

Was Kardashian's comment a First-Amendment-protected statement of opinion, or a liability-risking statement of fact? It's hard to say.

Imagine a diet that simply counseled dieters to substitute almonds for their daily snack of potato chips or the like. Calling that diet "unhealthy" would, I believe, be a false statement of fact. That's because it is pretty much universally believed that almonds are healthier than potato chips. It's a no-brainer.

Now, imagine a diet that counseled dieters to replace one meal a day with a protein shake. Calling that diet "unhealthy" would, I believe, be a statement of opinion, since reasonable minds can differ on whether a protein shake is a sufficient replacement for a regular meal.

In turn, I believe that the question whether Dr. Siegal's diet is healthy is closer to the protein shake example, than to the almonds/potato chips example. Dr. Siegal may well be right that his diet is healthy, but the answer to that question is not a complete no-brainer – an issue as to which reasonable persons could not differ. Instead, it takes some analysis and evidence to get to the conclusion.

For that reason, I think Kardashian is apt to win the lawsuit, on the ground that when she used the word "unhealthy," she was stating an opinion, not a fact. Indeed, a Google search reveals a range of opinion, pro and con, as to whether the cookie diet is unhealthy.

However, I could also see a court saying that healthfulness is a practical fact: Either the diet, over time, has improved the health of those who used it, or it hasn't. If it has, the judge might say, then it's healthful.

The complexity here comes from the fact that the diet's cookies might not be as healthy as, say, fresh vegetables, but if eating the cookies ends obesity for some dieters, then the diet's overall effect could still be termed healthful.

Overall, I think a court is more likely to see healthfulness as a matter of opinion, not a matter of fact (except at the extremes). Still, Kardashian would have been better-protected, from a libel standpoint, if she had cited some true facts regarding Dr. Siegal's diet as the basis for her opinion. Doing so would have meant that her comments would have fit into a special, ironclad libel-law privilege for "opinion based on disclosed fact."

The idea behind the privilege is that if the facts stated are true, then the reader can decide for himself or herself whether the opinion that is stated really follows from them or not.
The classic example goes like this: "John had three drinks at lunch today. He did the same yesterday. Thus, I believe he is an alcoholic."

It's easy to see why a lawsuit based on these comments should fail: The listener can independently judge whether he agrees with the conclusion that John is an alcoholic – and can draw his or her own conclusions, perhaps commenting "John may have a problem, but his behavior at two lunches isn't enough to conclude he's an addict."

The Danger of Twitter: Little Space to Reveal the Facts Behind a Statement of Opinion in a Single Tweet

That point brings us to the danger of Twitter: One hundred and forty characters, the limit for a tweet, simply isn't enough to spell out the facts behind an opinion. Granted, a follow-up tweet might be provided as a clarification – but will courts allow a succession of tweets to come under the privilege for "opinion based on disclosed fact"? I wouldn't bet on it.

On one hand, any Twitter follower will have access to all the tweets that have been sent by a given sender. On the other hand, there's no guarantee that the follower will read the relevant tweets all together – or will read all of them. Instead, some followers may check in periodically, reading whatever comment is most current on the feed. As a result, courts may find that later tweets may mitigate damages – reducing what losing defendants must pay – or constitute retractions, but are unlikely to see later tweets as a reason to dismiss the suit.

The bottom line, then, is that no one – celebrity or not -- is well-advised to have a fight on Twitter in which potentially or borderline libelous comments are made. And for deep-pocketed celebrities like Kardashian, that advice goes double. Defending an opinion is much easier when it is coupled with a series of strong, true supporting facts, but Twitter may not allow enough space to effectively provide them.

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden's article "A Contractarian View of Animal Rights: Insuring Against the Possibility of Being a Non-Human Animal" appeared in the journal Animal Law and can be found on her website.

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