Twibel: The Intersection of Twitter and Libel
Twitter is a social networking service that enables users to send and receive messages called “tweets.”1 Tweets can be sent from a computer or mobile devices, such as smart phones, and are by default visible to all those who are following the tweeter.2 Twitter has become an influential tool for broadcasting and communication, and people utilize Twitter to report news, discuss global affairs, and express personal opinions on everything from investments and cars to politicians and private individuals. In some cases, the opinions are tantamount to libel and can reach millions of people within seconds.3
This article addresses some of the basic constitutional implications of a libelous statement that is published on Twitter, commonly referred to as “twibel.”4 Although the law is still evolving in this area, the nature of the medium ( e.g., Twitter versus a newspaper) is generally less important than the nature of the communication in determining whether the publication is subject to protection under the U.S. Constitution.
Twitter was created in 2006, and its growth has been exponential. Twitter grew from 5,000 tweets per day in 2007 to 500 million tweets per day in 2013.5 Currently, there are an average of about 6,000 tweets per second, which is over 350,000 tweets sent per minute, 500 million tweets per day, and around 200 billion tweets per year.6
Twitter has become more than a social network. On a daily basis, newsworthy information streams across Twitter. For example, Twitter was used as a tool to disseminate real time information about the Egyptian Revolution in 2011,7 and it has played an active role in the dissemination of information concerning the current presidential debates.8 Twitter has been “embraced by journalists, governments, and businesses as a crucial source of real-time information on everything from natural disasters to celebrity gossip, and from debates over sexual violence to Vatican politics.”9
Twitter is also being used to express personal opinions about public figures and private individuals, and in some cases, these opinions are equivalent to twibel. Twibel is a relatively new phenomenon for the legal system, and the legal principles are evolving. A brief discussion of the evolution of libel in the United States provides a foundation for analyzing the legal implications of twibel.
Evolution of Libel Law
Libel is a tort.10 The term tort is derived from the Latin term “tortus,” which means twisted,11 and this is perhaps an appropriate foundation for a twibel claim because the truth has been twisted.
Libel is a creature of common law,12 and in its early stages of development, the common law imposed a fault standard ( i.e., malice) on libel claims in order to control the floodgate of defamation lawsuits. Over time, the fault standard has become a fiction with the development of defamation per se principles.13 For example, in 1933, the Florida Supreme Court noted in Layne v. Tribune Co., 108 Fla. 177, 181 (1933), that “the publication of a libel per se is such that, in the eyes of the law, its publication per se necessarily imports injury, and thereby obviates the necessity of either pleading or proving damage or malice in fact, since both of these elements are presumed as a matter of law in such cases.” In many jurisdictions, libel evolved into a strict liability cause of action, which meant that liability could be imposed on a defendant without fault when the statement was neither true nor privileged.14
In 1964, the U.S. Supreme Court attempted to balance the state’s interest in protecting the reputation of its citizens and society’s interest in preserving free speech under the U.S. Constitution. In the landmark case, New York Times, Co. v. Sullivan, 376 U.S. 254 (1964), the U.S. Supreme Court indicated that state defamation laws, including libel, are limited by the principles espoused in the First Amendment of the U.S. Constitution where the speech involves matters of public concern.
The New York Times decision changed libel law in the United States. In the aftermath of New York Times, if a libelous statement involves a matter of public concern, then the plaintiff must prove that the defendant acted with some degree of fault ( i.e. , malicious, reckless, or negligent) before liability can be assessed for libel. The public or private status of a plaintiff impacts the degree of fault that must be proven.15
In Florida, the libel law today is somewhat consistent with the decision in New York Times. For example, the Florida Supreme Court’s Standard Jury Instructions Notes on Use provide that when the plaintiff is a public official or a public figure, he or she must prove the defendant made a false defamatory statement with “actual malice.”16 The jury instructions also provide that if the plaintiff is not a public person, and the defendant is a member of the press or broadcast media publishing on a matter of public concern, then the defendant cannot be held liable for a false publication without proof of fault.17
Twibel — Libel in a Twitter Environment
Given Twitter’s brief history, there are very few cases that analyze the legal consequences of a twibelous act. Less than 10 twibel lawsuits were reported from 2006 to 2013, and none went to trial. In 2009, a tenant used Twitter to post derogatory comments about the condition of his apartment. The landlord sued the tenant for defamation claiming $50,000 in damages; however, the court dismissed the case on the grounds that the “tweet was too vague to meet the legal standard for libel” under the state law.18 In 2011, an individual tweeted that a doctor was allegedly having intimate physical contact with patients.19 The doctor sued the individual for twibel, and the case was confidentially settled before the trial. Although these cases do not offer guidance as to whether a twibelous activity garners protection under the U.S. Constitution, the cases do demonstrate that the legal profession is beginning to seek redress for such activities.
One twibel case to go to trial was the matter of Holmes, et al. v. Love, No. B256367 (CA2, Div. 4, Feb. 1, 2016).20 Courtney Love hired an attorney to pursue a claim against the estate of her late husband, Kurt Cobain.21 Apparently, the relationship between Holmes and Love became acrimonious and the attorney-client relationship was terminated.22 Love later posted a message on Twitter stating, “I was f**king devastated [sic] when [my attorney] was bought off @FairNewsSpears perhaps you can get a quote.”23 The attorney sued Love for libel.24 Love filed a motion to dismiss claiming that she should not be held accountable for her statements on Twitter because hyperbole and sensational language are normal and to be expected on social media.25 The trial court denied the motion to dismiss and the matter proceeded to trial.26 At the trial, Love indicated that she was computer ignorant and did not fully understand how to use Twitter.27 According to Love, she thought that she was having a private conversation on Twitter.28 Love indicated that she removed the tweet as soon as she realized that the tweet was viewable by the public.29 The jury ruled in favor of Love30 and “found that the Twitter statement was false and had a natural tendency to injure Holmes’ profession, but that Holmes did not prove by clear and convincing evidence that [Love] knew the statement was false or had serious doubts about the truth of the statement.”31
Libelous activities on social media websites tend to be problematic for the lower courts because the internet blurs the line between traditional media outlets and social media websites. For example, in Obsidian Finance Group LLC, et al. v. Cox, 812 F. Supp. 2d 1220 (D.C. 2011), the defendant posted several derogatory statements on the internet alleging that Obsidian committed tax fraud and laundered money. The trial court found that the defendant failed to submit any “evidence suggestive of her status as a journalist,” and, therefore, concluded that the plaintiff did not have to prove fault on the part of the defendant.32 In essence, the trial court adhered to a strict liability regime for proving libel. The appellate court in Obsidian affirmed in part and reversed in part.33 The appellate court indicated that the First Amendment is not limited to cases with institutional media defendants. The appellate court also stated that the statements made by the defendant on the website addressed matters of public concern; therefore, the trial court should have instructed the jury that the defendant could not be liable for defamation unless it found that she acted negligently.34
The demarcation between traditional media outlets and social media websites should not be relevant in a constitutional inquiry concerning libel because the choice of medium does not trigger the free speech rights that exist under the U.S. Constitution. Indeed, the U.S. Supreme Court stated in the matter of Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010): “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers. With the advent of the [i]nternet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.”35 Therefore, it is not the medium that is used by the person ( e.g. , Twitter or newspaper editorial) that invokes the First Amendment — it is the content of the message.36
Free speech rights under the U.S. Constitution are implicated when the content of the message involves a public concern.37 In deciding whether a twibel claim is constitutionally protected, the content, form, and context of the message should be examined to see whether the overall thrust and dominant theme of the statement involves a matter of public concern.38 To illustrate how a statement is associated with a public concern, consider the matter of Snyder v. Phelps, 131 S. Ct. 1207 (2011). Snyder’s son was a Marine who was killed in the Iraqi war.39 Phelps and a group of his church members (Westboro) picketed the funeral of Snyder’s son and displayed callous and despicable placards that stated, “Thank God for dead soldiers,” “Semper fi fags,” “God hates you,” “You’re going to hell,” and “Thank God For 9/11.”40 In addition, Westboro used its website to chastise Snyder for raising his son in the Catholic Church. Westboro stated on its website that “[the father] raised [his son] for the devil” and “taught [his son] to be an idolater.”41 Snyder’s father sued Westboro for defamation, among other claims.
The U.S. Supreme Court ruled in favor of Westboro finding that the speech related to matters of public concern, and, therefore, was protected under the First Amendment of the U.S. Constitution. In reaching this decision, the Supreme Court noted that the “overall thrust and dominant theme” of the statements should be analyzed to determine whether they relate to matters of public or private concern.42 The Supreme Court also stated that “speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.”43
In this context, the Supreme Court noted that even though some of the offensive statements were direct attacks on a father that was mourning his dead son and related to purely private matters, the overall thrust and dominant theme of the demonstration by Westboro at the funeral spoke to broader public issues.44
If the overall thrust and dominant theme of a twibelous statement involves a matter of public concern, then the defendant should be able to use the First Amendment as a shield against twibel claims. However, if the plaintiff can prove that the defendant’s behavior was malicious, reckless, or negligent, then the defendant’s constitutional shield for the twibelous conduct will be lost, and liability will most likely follow.45
The public or private status of a plaintiff impacts the degree of fault that must be proven to pierce a defendant’s constitutional shield for twibelous activities that involve matters of public concern. To illustrate how the status of the plaintiff can impact the burden of proof in a libel claim, consider the Supreme Court’s decision in the matter of New York Times, Co. v. Sullivan, 376 U.S. 254 (1964) . In 1964, The New York Times published an article that alleged the arrest of Martin Luther King, Jr., for perjury in Montgomery, Alabama, was a part of a crusade to stop King’s efforts to end segregation.
The supervisor of the local police department sued The New York Times for libel. At the time, Alabama used a strict liability standard in proving defamation, and, therefore, the court did not require the plaintiff to prove any fault on the part of the defendant. The New York Times lost the case at the state court level. On appeal, the U.S. Supreme Court examined the content of the article published by The New York Times and found the article was a form of free speech that was protected by the U.S. Constitution because the article involved matters of national and public concern.46 As a consequence, the strict liability system utilized by the Alabama court to impose liability on The New York Times could not be applied in this case. Since the plaintiff was the supervisor of the police department ( i.e. , a public official), he had to prove that The New York Times acted with malice, a burden he could not satisfy.47
The degree of fault is not the same for a public person ( e.g. , malice or reckless) and a private person.48 If the libelous statements relate to a private person who is not a public figure, the U.S. Supreme Court ruled in the matter of Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), that states may define the appropriate standard of liability for a publisher of defamatory falsehoods relating to private individuals, but it may not impose strict liability for defamatory falsehoods. Thus, a plaintiff, whose status is that of a private person, could simply allege negligence to pierce a defendant’s constitutional shield for twibelous activities that relate to matters of public concern. However, when negligence is used to pierce a defendant’s constitutional shield for the twibelous conduct, the plaintiff’s damages will be limited to the actual damages suffered.49
It is beyond the scope of this article to address what constitutes a public person, but in examining the evolution of the caselaw, a few guidelines may be summarized.50 A public person may be either a public official or a public figure. A public official is any government employee that has, or appears to have, substantial responsibility for, or control over, governmental affairs.51 A governor or legislator is an example of a public official. A public figure is a person who has gained distinction in the community as a result of his or her name or activities involving matters of public concern.52 This status may be achieved either willingly or unwillingly.
If a person has power or influence over public affairs or has pervasive fame and notoriety in public affairs, then that person may be considered a public figure.53 Mohammed Ali and Martin Luther King, Jr., are examples of public figures.54 In addition, a person may be deemed a public figure if there is a preexisting public controversy in which the person voluntarily injects oneself to influence the outcome.55 For example, an otherwise private person who injects himself or herself into a public abortion debate would likely become a public figure.56 Public figure status is a gray area of the law and can be influenced by a person’s access to the media.57 For example, if a person is involved in a public controversy and through their involvement he or she is subjected to libelous statements, access to the media may be used to change one’s status from that of a private person to that of a public figure. This change in status will change the degree of fault needed to pierce the constitutional veil from negligence to malice or recklessness. Under Florida law, a private individual is not automatically transformed into a public figure simply by becoming involved in or associated with a matter that attracts public attention.58
The latter principle may be considered an important defense to a twibel claim. Social networking sites, such as Twitter, have created what some have called the “personal public.”59 This “personal public” differs in several ways from the general population who use television and other traditional news media outlets as a source of information. First, an individual subscribes to, or reads, items based on “personal relevance,” not newsworthiness. Second, information is not broadcasted to an unknown mass audience; rather the audience is made up of explicit network connections. Finally, and most significantly, social networking is not one-way communication, as is television or print media; it is conversational.60 Unlike traditional media, such as television or print media, social media creates parity between the parties.
Twitter provides the defamed party with the ability to immediately rebut the comments on the same venue, which may reduce the amount of damage that follows from the twibelous conduct. Accordingly, when there is some degree of parity on Twitter between the parties, mitigation of damages may be a viable defense for a defendant to employ to reduce the impact of a twibel claim.61 In addition, access to media or parity may be used by a defendant to argue that the degree of fault needed by the plaintiff to pierce the constitutional veil should be malice or recklessness rather than negligence because the “digital age has significantly eroded the public figure vs. private figure distinction.”62
Of course “access to media” must exist for parity to have any real impact on a twibel claim.63 For example, if Jones has 10,000 Twitter followers and makes twibelous statements about Smith, who has only 100 followers, it is unlikely that a court should consider the parties to have parity because any rebuttal by Smith would be limited. In addition, for the rebuttal to have any mitigating effect, it must reach the followers of Jones. This could happen if Jones retweets Smith’s rebuttal or if they have the same followers.64 Therefore, a close examination of the parity will be necessary in order to determine if the access to media principle should be employed to mitigate the impact of twibel.
Under the current legal framework, the fact that a libelous statement was made on Twitter should not be a legal factor that influences the decision to grant a defendant free speech protection under the First Amendment to the U.S. Constitution. The fact that libelous activities occur on Twitter, or any other internet website, is irrelevant in a free speech inquiry because the website is nothing more than the chosen medium that is used to publish the statements to third parties.
In deciding whether twibelous activities garner constitutional protection, the content of the message should be examined first to see if the overall thrust and dominant theme of the statement involves a matter of public concern. If the overall thrust and dominant theme of the message involves a matter of free speech, then the defendant should be able to use the First Amendment as a shield against twibel claims. However, if the plaintiff can prove that the defendant’s conduct was malicious, reckless, or negligent, then the defendant’s constitutional shield for the twibelous conduct will be lost and liability will likely follow. The status of the plaintiff will impact the burden of proof that is needed to pierce the constitutional shield.
This article is not suggesting that the legal framework will not evolve to address social media websites such as Twitter. Twitter is not limited to one-way communication, as are television, radio, and other forms of traditional media. Twitter’s instantaneous two-way communication could create parity between the parties, possibly creating opportunities for mitigation by the defamed party.
Hyperbole and sensational language are common in social media outlets such as Twitter.65 Only time will tell if social media will alter the course of defamation law in the American legal system.
3 Internet Live Stats, Twitter Usage Statistics, http://www.internetlivestats.com/twitter-statistics/.
4 “Twibel” was coined by concatenating Twitter and libel. The term was used in reports by various sources including ABC News, The Huffington Post, Media Bistro, and the American Bar Association Journal. See also Martha Neil, Defense Verdict for Courtney Love in “Twibel” Case Brought by her Former Lawyer,
ABA J. (Jan. 27, 2014), available a http://www.abajournal.com/news/article/defense_verdict_for_courtney_love_in_twibel_trial_brought_by_her_former_law ; see also Kevin McCoy, Courtney Love Tweets after Twitter Trial, USA Today, Jan. 25, 2014, available at http://www.usatoday.com/story/money/business/2014/01/25/jury-sides-with-courtney-love-in-trial-over-tweet/4882997/.
5 See Kevin Weil (VP of product for revenue and former big data engineer, Twitter, Inc.), Measuring Tweets, Twitter Official Blog (Feb. 22, 2010). See also Raffi Krikorian (VP, platform engineering, Twitter, Inc.), New Tweets Per Second Record, and How!, Twitter Official Blog (Aug. 16, 2013).
6 Internet Live Stats, Twitter Usage Statistics (Jan. 25, 2016), http://www.internetlivestats.com/twitter-statistics/.
7 See Ricardo Beuttner & Katharina Beuttner, A Systematic Literature Review of Twitter Research from a Socio-Political Revolution Perspective (Jan. 2016). See also Pacific Standard, The Arab Uprising’s Cascading Effects ( Feb. 23, 2011), https://psmag.com/the-arab-spring-s-cascading-effects-a21b91cbee63#.w30iyjbk1.
8 Andy Guess, et al., Here’s What We Learned from Twitter About the Last Democratic Debate, Washington Post, Nov. 14, 2015, available at https://www.washingtonpost.com/news/monkey-cage/wp/2015/11/14/heres-what-we-learned-from-twitter-about-the-last-democratic-debate/.
9 Weller, et al., Epilogue: Why Study Twitter, Twitter and Society 426-432 (2014).
10 Rutherford v. Dougherty, et al., 91 F.2d 707 (Ca. 1937).
11 Tort, Merriam Webster, available at http://www.merriam-webster.com/dictionary/tort.
12 James Lake, Restraining False Light: Constitutional and Common Law Limits on a “Troublesome Tort,” 61 Fed. Comm. L. J. 625, 626 (2009). See also Henry P. Trawick, Jr., Ch. 25, Libel and Slander, Torts (2015).
13 See Prosser et al., Torts at 870-71(2005).
14 Michael A. DiSabatino, Summary — Generally, State Constitutional Protection of Allegedly Defamatory Statements Regarding Private Individual, 33 A.L.R. 4th 212, §2[a].
15 New York Times, Co. v. Sullivan, 376 U.S. 254 (1964); see also Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
16 In re Standard Jury Instructions In Civil Cases-Report No. 09-01 (Reorganization of the Civil Jury Instructions), 35 So. 3d 666, 725 (Fla. 2010). See Florida Supreme Court Standard Jury Instructions, Defamation, Notes on Use §405.
18 Horizon Group Management, LLC v. Bonnen, No. 2009-L-008675, 2009 WL 2231162 (Ill. Cir. Ct. July 20, 2009).
19 Darm v. Craig, No. 110708823, 2011 WL 2947342 (Or. Cir. July 11, 2011).
20 Unpublished opinion.
21 Holmes, et al. v. Love, No. B256367 at 3 and 4 (CA2, Div. 4, Feb. 1, 2016).
22 Id. at 4.
23 Id. at 5; see also Technology and Law Blog, Courtney Love Defeats Twibel Claims — Holmes v. Love, http://blog.ericgoldman.org/archives/2016/02/courtney-love-defeats-twibel-claims-holmes-v-love.htm.
24 Holmes v. Love, No. BC-462438 (Cal. Super. Ct. May 26, 2011), aff’d on appeal, Holmes, et al. v. Love, No. B256367 (CA2 Div. 4, Feb. 1, 2016).
25 See Ellyn Angelotti, How Courtney Love And U.S.’s First Twitter Libel Trial Could Impact Journalists,
Poynter (Jan. 14, 2014), http://www.poynter.org/2014/how-courtney-love-and-u-s-s-first-twitter-libel-trial-could-impact-journalists/235728/.
26 See Holmes, No. B256367 at 2 (CA2, Div. 4, Feb. 1, 2016).
27 Id. at 5. See also Kurt Orzeck , Courtney Love Cleared of Defamation in Twibel Suit, Law360 (Jan. 2014), available at http://www.law360.com/articles/504056/courtney-love-cleared-of-defamation-in-twibel-suit.
28 Id. See also Kevin McCoy, Courtney Love Tweets After Twitter Trial, USA Today, Jan. 25, 2014, available at http://www.usatoday.com/story/money/business/2014/01/25/jury-sides-with-courtney-love-in-trial-over-tweet/4882997/.
29 Id. at 5.
30 Id at 2.
31 Id. at 6. See also Kurt Orzeck , Courtney Love Cleared of Defamation in Twibel Suit, Law360 (Jan. 2014), available at http://www.law360.com/articles/504056/courtney-love-cleared-of-defamation-in-twibel-suit.
32 Obsidian Finance Group LLC et al. v. Cox, 740 F.3d 1284, 1289 (9th Cir. 2014).
35 Citizens United, 130 S. Ct. 905-906.
36 See also Katherine Pownell, Comment, Defamation and the Nonmedia Speaker, 41 Fed. Comm. L. J. 195 (UCLA Law School, 1989).
37 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758-759 (1985) (opinion of J. Powell) (quoting First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978)).
39 Snyder v. Phelps, 131 S. Ct. 1207, 1210 (2011).
41 Id. at 1225.
42 Id. at 1210. See also Clay Calvert, Defining “Public Concern” After Snyder v. Phelps : A Pliable Standard Mingles With News Media Complicity, 40
Villanova Sports & Ent. L. J. 19, 39.
43 Snyder, 131 S. Ct. at 1217.
45 Pullum v. Johnson, 647 So. 2d 254, 257 (Fla. 1st DCA 1994) (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 20-21 (1990) (“[W]here such a statement involves a private figure on a matter of public concern, a plaintiff must show that the false connotations were made with some level of fault.”).
46 New York Times, 376 U.S. at 270.
47 Id. at 279; see also Curtis Publishing Co. v. Butts et al., 388 U.S. 130 (1967).
48 Curtis Publishing, 388 U.S. at 163-64 (“[D]ifferentiation between ‘public figures’ and ‘public officials’ and adoption of separate standards of proof for each have no basis in law, logic, or First Amendment policy.”).
49 Gertz, 418 U.S. at 370.
50 See Digital Media Law Project, Examples of Public and Private Figures, http://www.dmlp.org/legal-guide/examples-public-and-private-figures.
51 Rosenblatt v. Baer, 383 U.S. 75, 86 (1966).
52 Gertz v. Robert Welch, Inc. , 418 U.S. 323, 345 (1972).
53 Id. at 345.
54 Curtis Publishing, 388 U.S. at 130, 155 (1991) (famous sports figures can attain public figure status).
55 Id. at 130 (1967).
56 Bair v. Clark, 397 So. 2d 926, 927-38 (Fla. 4th DCA 1981) (“[G]eneral participation in a controversial activity or occupation will not transform a previously obscure individual into a public figure absent the individual voluntarily thrusting himself into the public forum.”).
57 Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).
58 Bair v. Clark, 397 So. 2d 926, 927 (Fla. 4th DCA 1981).
59 Weller, et al., Twitter and the Rise of Personal Publics, Twitter and Society 3-14 (2014).
61 See David Lat & Zach Shemtob, Public Figurehood in the Digital Age, 9 J. Telecomm. & High Tech. L. 403 (2011).
62 Id. at 404. But see Patrick H. Hunt, Tortious Tweets: A Practical Guide to Applying Traditional Defamation Law to Twibel Claims, 73 La. L. Rev. (2013), available at http://digitalcommons.law.lsu.edu/lalrev/vol73/iss2/8.
63 P trick H. Hunt, Tortious Tweets: A Practical Guide to Applying Traditional Defamation Law to Twibel Claims, 73 La. L. Rev. (2013).
64 FAQs about Retweets, https://support.twitter.com/articles/77606.
65 See Jessica Bennett, OMG! The Hyperbole of Internet-Speak, The New York Times, Nov. 28, 2015, available at http://www.nytimes.com/2015/11/29/fashion/death-by-internet-hyperbole-literally-dying-over-this-column.html?_r=0.
Raymond Placid is an attorney and CPA and currently teaches law-related courses at Florida Gulf Coast University.
Judy Wynekoop is the associate dean for graduate programs and accreditation for the Lutgert College of Business at Florida Gulf Coast University, where she is also a professor of information systems.
Roger W. Feicht is an attorney with Gunster, Yoakley & Stewart, P.A., in West Palm Beach. He focuses his practice on advising employers and employees on employment law issues, with an emphasis on employment lawsuits related to defamation, discrimination, and noncompetition agreements. Additionally, he helps clients facing threatened or actual litigation in a variety of complex commercial litigation contexts.