Delaware Court Latest To Point The Twitter Finger: Tweets Can Constitute Actionable Expressions Of Fact

• Published date: 07 February 2022
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Libel & Defamation, Social Media
• Law Firm: Archer & Greiner P.C.
• Author: Amy Pearl, John C. Connell and Peter L. Frattarelli

Whether social media posts can constitute statements of fact capable of supporting a claim for defamation is an issue that has split courts across the country for quite some time. Understandably so, given the First Amendment concerns entrenched in the issue, the lighting fast pace at which social media, the evolution of the way we use it, and the unique nature of such communication on social media platforms.

On January 5, 2022, the Delaware Court of Chancery became the latest court to weigh in on the issue, doing so by way of a letter opinion requiring Twitter, Inc. to comply with subpoenas seeking identifying information associated with four anonymous Twitter accounts relevant to BDO USA, LLP's ("BDO") defamation action against EverGlade Global, Inc. ("EverGlade). BDO USA, LLP v. EverGlade Global Inc.,No. 2021-0244, 2022 WL 41416 (Del. Ch. Jan. 5, 2022). In green lighting compliance with the subpoenas, the court found that tweets could constitute actionable expressions of fact sufficient to support a claim for defamation.

Background

In March 2021, BDO sued EverGlade, alleging, among other things, that EverGlade "created and used accounts on various social media platforms to publish defamatory videos and statements accusing BDO of corruption, fraud, sexual harassment, audit rigging, racism and operation of a criminal enterprise." Am. Compl. '8. During discovery, BDO issued subpoenas to Twitter, Inc., which sought to unmask the identities behind four anonymous Twitter accounts'@boycottbdo, @boycottbdo1, @boycottbdo2, and @bdoboycott'which, according to BDO, EverGlade and its CEO used as part of this "smear campaign" against BDO.

EverGlade and its CEO denied any association with these accounts and Twitter objected to providing the information BDO sought absent a court order. As a result, BDO filed a Motion for Court Authorization for Twitter, Inc. to Comply with Subpoenas, which the court granted from the bench on November 4, 2021 following oral argument. The court supplemented its ruling by way of a letter opinion on January 5, 2022.

Court of Chancery Ruling

Because BDO sought to unveil the identity of anonymous Twitter users, a more stringent standard for disclosure applied to guard against countervailing First Amendment concerns. As laid out in a 2005 Delaware Supreme Court decision, Doe v. Cahill, a party seeking the identity of an anonymous internet poster of allegedly defamatory material through the discovery process "must (i) make reasonable efforts...