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Why to Worry About the Law of The Sea

The seizure on March 26, 2015, of the Marshall Islands-flagged Maersk Tigris cargo ship by Iranian forces off its coast at the Strait of Hormuz on a years-old dispute over containers is something that should get everyone’s attention. What is even more troubling than the seizure of a commercial vessel is that Maersk had agreed to settle the dispute. Iran is appealing for more money in the courts, but, rather than let the courts proceed, took the matter into its own hands.

Understand that one fifth of the world’s oil passes through the Strait of Hormuz in a given year.

We know that piracy, especially off the east coast of Africa and in the vast Asian Pacific, has become a major concern to shippers. So much so that Rolls Royce has announced that one of the benefits of its proposed crewless ship is that it would be much easier to take down pirates, because there will not be the crew hostages to deal with, as there are today. However, if nations begin to seize ships outside the law and with as flimsy an excuse as Iran has in the Maersk case, this is cause for alarm.

While the U.S. will be escorting U.S.-flagged vessels in the area of the seizure, our military fleet is simply inadequate to serve all potential hot spots. Even with escort protection, the risks of confrontation accelerate. Confrontation can include blockades, using vessels to buzz or interfere with navigation or otherwise harass shipping and their escorts, firing shots across the bow, ramming and even firing on vessels and their escorts. Recall that the U.S. entered World War I and World War II and increased our presence in Vietnam as the result of the Germans’ sinking of the Lusitania, the Japanese bombing of Pearl Harbor and the very questionable U.S.-North Vietnamese Gulf of Tonkin incident—all military events involving the sea.

Not all military maneuvers on the seas are necessarily problematic. The U.S. Coast Guard has become adept in hunting down drug traffickers and human smugglers in U.S. waters and cooperates with Central and South American countries to interdict traffickers in the greater Gulf of Mexico. However, these small ships, submarines and speedboats are not like the huge container vessels that large shipping conglomerates operate worldwide.

Even so, there are times when even larger ships pose challenges to countries and militaries, generally for contraband, drugs or illegal shipments of weapons. In 2013, Panamanian officials detained the North Korean-flagged Chong Chon Gang en route from Cuba to North Korea on suspicion of drug trafficking. The investigation uncovered cargo that looked like weapon systems subject to international sanctions against delivery to North Korea. The Panamanian Government consulted with the UN, and the dispute was resolved. In this incident, international law was followed. In the Iranian incident, it is much less clear that its military had the authority to seize the Maersk ship over a payment dispute already in the court system under appeal.

The Shipping Juggernaut

The World Shipping Council reported that world container shipping alone in 2009 produced an annual economic contribution of:

  • Direct gross output or GDP Contribution — $ 183.3 Billion
  • Direct capital expenditure — $ 29.4 Billion
  • Direct jobs — 4.2 million
  • Compensation to those employees $ 27.2 Billion

The global supply matrix relies heavily on container and bulk shipping to move raw materials, parts and components and complete product between producers, suppliers and customers to virtually every large-vessel navigable port in the world. Some of the biggest container vessels can carry 11,000 containers, and the loss of even one could strain world marine insurance resources. The increase in traffic and size of vessels has led to major efforts to widen the Panama and Suez canals. The Port of Long Beach 20-mile Alameda Corridor went online in 2002 to speed rail traffic under the streets of Los Angeles to remove a major bottleneck to the U.S.’s busiest container port. We can only speculate that one reason why Warren Buffett purchased the Burlington Northern Santa Fe (BNSF) railroad in 2009 was because he saw the spectacular increase in container rail traffic from ports on all U.S. coasts to all parts of the interior.

The modern insurance industry has its roots and owes even much of its policy language to marine insurance beginning with Lloyds during the first tranche of globalization when Britain and other European powers needed to cover commercial trade to and from their vast worldwide colonies. The ocean is big business.

Law of the Seas Doctrine

Who owns the sea? We all do. However, after World War II, many countries led by the U.S. increased the size of their territorial waters for security, fishing and other purposes. In 1967, the UN decided it was time to convene a group to develop an international law of the sea. Unlike trade agreements, the international law of the sea is a framework not for tariffs, taxes and other international economic activities, but for how we may use the sea as our collective heritage. We might compare the international law of the sea to the rules promulgated by the National Parks Service for what people can and cannot do while visiting, working in or otherwise using the natural resources of Yellowstone Park.

The convention can be summarized as follows: The seas are open and free to all states, coastal or landlocked. Passage shall be free and unhindered. The sea is the heritage of all humanity, which includes conservation and protection of these resources from pollution or overfishing or other adverse activities. The seas shall be used for peaceful purposes. Ships and states have a duty to render assistance to vessels and persons in trouble. Cooperation is expected to repress piracy.

These are some of the key provisions relevant to the discussion of the Iranian seizure:

  • 12-nautical-mile limit on territorial waters.
  • “Ships and aircraft of all countries are allowed ‘transit passage’ through straits used for international navigation; States bordering the straits can regulate navigational and other aspects of passage”
  • “All other states have freedom of navigation and overflight in the EEZ [Exclusive Economic Zone], as well as freedom to lay submarine cables and pipelines”
  • “Land-locked and geographically disadvantaged states have the right to participate on an equitable basis in exploitation of an appropriate part of the surplus of the living resources of the EEZ’s of coastal states of the same region or sub-region; highly migratory species of fish and marine mammals are accorded special protection”
  • “All states enjoy the traditional freedoms of navigation, overflight, scientific research and fishing on the high seas; they are obliged to adopt, or cooperate with other states in adopting measures to manage and conserve living resources”
  • “Land-locked states have the right of access to and from the sea and enjoy freedom of transit through the territory of transit states”
  • “State parties are obliged to settle by peaceful means their disputes concerning the interpretation or application of the convention”
  • “Disputes can be submitted to the International Tribunal for the Law of the Sea established under the convention, to the International Court of Justice, or to arbitration. Conciliation is also available, and, in certain circumstances, submission to it would be compulsory. The tribunal has exclusive jurisdiction over deep seabed mining disputes.” (United-Nations 2012)

Iran is a 1982 signatory of the International Law of the Sea and included this statement:

In accordance with article 310 of the Convention on the Law of the Sea, the Government of the Islamic Republic of Iran seizes the opportunity at this solemn moment of signing the Convention, to place on the records its “understanding” in relation to certain provisions of the Convention…that only states parties to the Law of the Sea Convention shall be entitled to benefit from the contractual rights created therein. [including] The right of Transit passage through straits used for international navigation…The notion of “Exclusive Economic Zone” (Part V). – All matters regarding the International Seabed Area and the Concept of “Common Heritage of mankind” (Part XI)…In the light of customary international law, the provisions of article 21, read in association with article 19 (on the Meaning of Innocent Passage) and article 25 (on the Rights of Protection of the Coastal States), recognize (though implicitly) the rights of the Coastal States to take measures to safeguard their security interests including the adoption of laws and regulations regarding, inter alia the requirements of prior authorization for warships willing to exercise the right of innocent passage through the territorial sea…The right referred to in article 125 regarding access to and from the sea and freedom of transit of Land-locked States is one which is derived from mutual agreement of States concerned based on the principle of reciprocity.

However, Iran included this provision which may have led to its thinking it could lawfully detain the Maersk vessel.

Furthermore, with regard to “Compulsory Procedures Entailing Binding Decisions” the Government of the Islamic Republic of Iran, while fully endorsing the Concept of settlement of all international disputes by peaceful means, and recognizing the necessity and desirability of settling, in an atmosphere of mutual understanding and cooperation, issues relating to the interpretation and application of the Convention on the Law of the Sea, at this time will not pronounce on the choice of procedures pursuant to articles 287 and 298 and reserves its positions to be declared in due time.”

We can expect that there will be incidents that involve questionable cargo subject to international restrictions and conventions, such as drugs, piracy, and prohibited weapons. We can expect that some of these interdictions will involve questions of fact that will be disputed or will later be found to be the result of false or misleading information or observation. However, disputes over cargo payments or other commercial activities whether between commercial ventures or states and commercial ventures deserve to be heard in arbitration procedures, courts of law or other internationally sanctioned dispute resolution venues.

Global trade has become too important for individual states to begin regulating the high seas on their own. There are many places of narrow passage like the Strait of Hormuz that border on many countries. We need to be especially vigilant in these areas and all agree to this specific International Law of the Sea provision: “Ships and aircraft of all countries are allowed ‘transit passage’ through straits used for international navigation; States bordering the straits can regulate navigational and other aspects of passage.”

We need also to prevent harassment or other restrictive activities so that border states in these narrow straits only introduce navigation and rights of passage regulations that are consistent with legitimate safety and security concerns. Slowages, frequent boardings, detentions and other activities that unnecessarily and intentionally restrain trade should be vigorously protested and prosecuted by international bodies and global industry.

McDonald’s: a How-(Not)-to on Innovation

McDonald’s is in free fall, in the U.S. and abroad. Sales in the U.S. were down 4% in February, continuing a slide that cost Don Thompson his job as CEO at the beginning of 2015. The McDonald’s promise of a uniform food and dining experience wherever you see the Golden Arches across the globe has quickly become a liability. Consumers are demanding choice, freshness and more transparency about the ingredients that go into what they’re eating — all things McDonald’s has in short supply. Those videos on how McNuggets are made aren’t helping much, either.

How did McDonald’s miss the boat? The slow-moving car wreck of a declining McDonald’s is déjà vu for marketers who have watched other industry-leading brands squander their equity by failing to adapt to changes in tastes. Blockbuster and RadioShack are just two of the many examples of companies that stood fast, or made only cosmetic changes, as their industries were innovating and shifting below their feet. Whether the products were comfort food, videos or cheap electronics, each company took too long to realize that people weren’t buying what they’re selling any more. Chipotle, Panera and other fast casual restaurants have quickly grown over the last 10 years, but, even though McDonald’s used to own part of Chipotle, it still stopped innovating and missed the looming threat.

Define dying. Even with the recent sales declines, McDonald’s still generates nearly $100 billion of revenue a year, so reports of its actually going out of business won’t be coming anytime soon. But the company is squarely on the wrong side of current eating trends. After expanding the menu to try and provide “something for everyone,” the company is now shrinking the menu again to focus on traditional core offerings. It will all be to no effect if the company isn’t able to re-imagine and re-invigorate the dining experience. Simply having salads on the menu isn’t enough. Nobody really wants to get a Caesar salad from McDonald’s to start with, especially not when it has more calories than the iconic burgers. And the rise of gourmet casual burger chains like Shake Shack and Wahlburger’s has made even McDonald’s core burgers look much less appealing than they did in the past. The patient is still breathing, but there are few signs of improvement.

It could have been different. The McDonald’s brand used to stand for tasty (if not necessarily healthy) food, a fun environment and a little piece of Americana. When I was a kid, I remember that rare times we got to go the McDonald’s down the block on 96th and Broadway as a real treat, complete with a Happy Meal and a toy. By comparison, last year I was spending a Saturday with my boys and wound up in a neighborhood where a McDonald’s was the only option for us to grab lunch. Instead of being excited, my four-year-old solemnly told me, “You know this food isn’t good for you, Daddy,” as he picked at the burger and fries in front of him. And he loves burgers. Times have changed, but McDonald’s really hasn’t. Instead of window dressing changes like substituting apple slices for fries in Happy Meals, the company needs to rethink the menu and value proposition, especially for families.

How can McDonald’s be put back together again? The best companies don’t shy away from market changes. They face changes head-on. It’s hard to remember now, but Netflix was once completely focused on renting DVDs by email. Instead of fighting the streaming revolution, Netflix embraced it wholeheartedly and now makes much more from that part of the business (though the company still has 6 million DVD subscribers in the U.S.). Demands change, and even the most entrenched market leaders can see it all slip away quickly; just ask Blackberry. McDonald’s needs to change its strategy, food and even the look of the stores if it wants to keep up. It won’t be the same old McDonald’s any more, but it might just help turn the business around.

Investor Concerns: Greece Is the Word

Unless you have been living on a desert island, you are aware that Greece is in the midst of trying to resolve its financial difficulties with European authorities. This is just the latest round in a financial drama that has been playing out for a number of years now. Up to this point, the solution by both euro authorities and Greek leaders has been to delay any type of financial resolution. And that is the exact prescription handed down just a few weeks ago as Greece approached a February month-end debt payment of a magnitude it could not meet. Greece has been given another four months to come up with some type of restructuring plan. At this point, we’ve simply stopped counting how many times euro authorities have kicked the Greek can down the road.

Why all the drama regarding Greece? Greece represents only about 2% of Eurozone GDP. Who cares whether Greece is part of the euro? The Greek economy simply isn’t a big enough piece of the entire euro economy to really matter, is it?

The fact is that the key problems in the Greek drama have very little to do with the Greek economy specifically. The issues illuminate the specific flaw in the euro as a currency and the fact that the euro authorities are very much hoping to protect the European banking system. The reason we need to pay attention is that the ultimate resolution of these issues will have an impact on our investment decision making.

A key characteristic of the euro, which was formed in 1998, is that there is no one overall guarantor of euro area government debt. Think about the U.S. If the U.S. borrows money to fund building bridges in five states, the U.S. government (via the taxpayer) is the guarantor of the debt; it is not the individual debt of the five states involved. Yes, individual U.S. states can take on state-specific debt, but states cannot print money, as can large governments, so there are limiting factors. In Japan, the Japanese government guarantees yen-based government debt. In the U.S., the federal government guarantees U.S. dollar-based government debt. In Europe, there is no one singular “European government debt” guarantor of essentially euro currency government debt. The individual countries are their own guarantors.

The Eurozone has the only common currency on planet Earth without a singular guarantor of government debt. All the euro area governments essentially guarantee their own debt, yet have a common currency and interest rate structure. No other currency arrangement like this exists in today’s global economy. Many have called this the key flaw in the design of the euro. Many believe the euro as a currency cannot survive this arrangement. For now, the jury is out on the question of euro viability, but that question is playing out in country-specific dramas, such as Greece is now facing.

One last key point in the euro currency evolution. As the euro was formed, the European Central Bank essentially began setting interest rate policy for all European countries. The bank’s decisions, much like those of the Fed in the U.S., affected interest rates across the Eurozone economies. Profligate borrowers such as Greece enjoyed low interest rates right alongside fiscally prudent countries like Germany. There is no interest rate differentiation for profligate or prudent individual government borrowers in Europe. Moreover, the borrowing and spending of profligate countries such as Greece, Italy, Spain, Portugal, Ireland and, yes, even France, for years benefited the export economies of countries such as Germany — the more these countries borrowed, the better the Germany economy performed.

This set of circumstances almost seemed virtuous over the first decade of the euro’s existence. It is now that the chickens have come home to roost, Greece being just the opening act of a balance sheet drama that is far from over. Even if we assume the Greek debt problem can be fixed, without a single guarantor of euro government debt going forward the flaw in the currency remains. Conceptually, there is only one country in Europe strong enough to back euro area debt, and that’s Germany. Germany’s continuing answer to potentially being a guarantor of the debt of Greece and other Euro area Governments? Nein. We do not expect that answer to change any time soon.

You’ll remember that over the last half year, at least, we have been highlighting the importance of relative currency movements in investment outcomes in our commentaries. The problematic dynamics of the euro has not been lost on our thinking or actions, nor will it be looking ahead.

The current debt problems in Greece also reflect another major issue inside the Eurozone financial sector. Major European banks are meaningful holders of country-specific government debt. Euro area banks have been accounting for the investments at cost basis on their books, as opposed to marking these assets to market value. In early February, Lazard suggested that Greece needs a 50% reduction in its debt load to be financially viable. Germany and the European Central Bank (ECB) want 100% repayment. You can clearly see the tension and just who is being protected. If Greece were to negotiate a 50% reduction in debt, any investor (including banks) holding the debt would have to write off 50% of the value of the investment. At the outset of this commentary, we asked, why is Greece so important when it is only 2% of Eurozone GDP? Is it really Greece the European authorities want to protect, or is it the European banking system?

Greece is a Petri dish. If Greece receives debt forgiveness, the risk to the Eurozone is that Italy, Spain, Portugal, etc. could be right behind it in requesting equal treatment. The Eurozone banking system could afford to take the equity hit in a Greek government debt write-down. But it could not collectively handle Greece, Italy, Spain and other debt write-downs without financial ramifications.

The problem is meaningful. There exist nine countries on planet Earth where debt relative to GDP exceeds 300%. Seven of these are European (the other two are Japan and Singapore):

Debt as % of GDP

IRELAND                                           390 %

PORTUGAL                                       358

BELGIUM                                          327

NETHERLANDS                                325

GREECE                                             317

SPAIN                                                 313

DENMARK                                        302

SWEDEN                                           290

FRANCE                                             280

ITALY                                                 267

As we look at the broad macro landscape and the reality of the issues truly facing the Eurozone in its entirety, what does another four months of forestalling Greek debt payments solve? Absolutely nothing.

How is the Greek drama/tragedy important to our investment strategy and implementation? As we have been discussing for some time now, relative global currency movements are key in influencing investment outcomes. Investment assets priced in ascending currencies will be beneficiaries of global capital seeking both return and principal safety. The reverse is also true. While the Greek debt crisis has resurfaced over the last six months, so, too, has the euro lost 15% of its value relative to the dollar. Dollar-denominated assets were strong performers last year as a result.

The second important issue to investment outcomes, as we have also discussed many a time, is the importance of capital flows, whether they be global or domestic. What has happened in Europe since the Greek debt crisis has resurfaced is instructive. The following combo chart shows us the leading 350 European stock index in the top clip of the chart and the German-only stock market in the bottom.

Untitled

Broadly, euro area equities have not yet attained the highs seen in 2014. But German stocks are close to 15% ahead of their 2014 highs. Why? Germany is seen as the most fiscally prudent and financially strong of the euro members. What we are seeing is capital gravitating toward the perception of safety that is Germany, relative to the euro area as a whole. This is the type of capital flow analysis that is so important in the current environment.

The headline media portray the Greek problem as just another country living beyond its means and unable to repay the debts it has accumulated. But the real issues involved are so much more meaningful. They cut to the core of euro viability as a currency and stability in the broad euro banking system. The Greek problem’s resurfacing in the last six months has necessarily pressured the euro as a currency and triggered an internal move of equity capital from the broad euro equity markets to individual countries perceived as strong, such as Germany. This is exactly the theme we have been discussing for months. Global capital is seeking refuge from currency debasement and principal safety in the financial markets of countries with strong balance sheets. For now, the weight and movement of global capital remains an important element of our analytical framework.

Watching outcomes ahead for Greece within the context of the greater Eurozone will be important. Greece truly is a Petri dish for what may be to come for greater Europe. Outcomes will affect the euro as a currency, the reality of the Greek economy, the perceived integrity of the European banking system and both domestic and global euro-driven capital flows. For now, Greece is the word.

Solvency 2: An Outcome Very Different Than Planned

The original intention of the EU's Solvency 2, the regulatory requirement for capital held by insurers, was to create a framework that inspired policyholder confidence and restore trust. The real outcome was to force insurers to undertake massive programs of data management at costs that, for some Tier 1 insurers, have exceeded $200 million. Some insurers said they would pass the cost on to their customers, which I’m sure wasn’t the intention.

In what was arguably worse, the cost became so great that other useful programs were put on hold because of this burning regulatory platform. The knock-on effect has been to create delay especially in customer-facing activities (which would have had a far better impact in improving confidence and trust).

Some international insurers suggested that the requirements might prevent them from trading in Europe – creating a “Fortress Europe” – but Solvency 2 seems to be emerging in multiple guises around the globe, in China, Latin America, South Africa and of course the U.S. in the form of RMORSA.

There’s lots written on this topic, such as http://www.solvencyiiwire.com/, and I won’t bore you, but as I looked out at the faces at a major conference in the U.S. where I spoke recently, I recognized the look I saw in many insurers in Europe in 2008 — that of not really knowing what was going to hit them.

Insurers were to discover that more than 80% of both cost and implementation time was absorbed in data management, 15% on analysis and the small balance on risk reporting. Yet the reporting element proved to be the only part visible – reminding me of an iceberg analogy, with the reporting being that part of the ‘berg visible above the waterline.

Comparing risk and regulation to an iceberg is interesting, and as I looked around the room at the conference, I wondered how many attendees were ready for what would be, for them, a long and difficult passage. But not, I hope, a Titanic one…

The Fallout From Ill-Advised Tweets

During the presidential debate on Oct. 3, 2012, a KitchenAid employee used the corporate account to send a tasteless (some would say disparaging and grossly offensive) tweet regarding the president’s grandmother. KitchenAid quickly apologized to the president and his family and explained what happened. In other words, KitchenAid followed the “rules” of reactive reputation management.  

KitchenAid was praised for responding quickly. But the outrage about the tweet was overwhelming, if only for a short period, and underscores that companies need to consider their potential liability from ill-advised tweets.

A bit of background: Libel (written) and slander (spoken), collectively known as “defamation,” which is the general term used internationally, are civil wrongs (sometimes carrying criminal penalties) that harm a reputation, decrease respect, regard or confidence or induce disparaging, hostile or disagreeable opinions or feelings against an individual or entity. If the allegedly defamatory assertion is an expression of opinion rather than a statement of fact, defamation claims usually cannot be brought because opinions are inherently not falsifiable. However, some jurisdictions decline to recognize any legal distinction between fact and opinion. 

Contrary to a general belief that insulting tweets (or comments online through Facebook, online message boards, etc.)  are exempt from libel laws because they are fleeting, libel laws apply to the Internet the same way they do to newspapers, magazines, books, films, etc. The same technology that gives you the power to share your opinion with thousands of people also qualifies you to be a defendant in a lawsuit.    

In considering your legal exposure if an employee may have committed libel, you must consider the country you live in, as well as your exposure to libel laws around the world.

U.S.

The medium for communication is irrelevant; even an email to a single person can be libelous if the sender knew a statement to be false, acted with reckless disregard for the facts or was otherwise irresponsible. To be libelous, the statement must also cause some damage.

United Kingdom 

The basis of British libel law is not substantially different from that in the U.S.: to protect the reputation of an individual from unjustified attack. In British law, a person is defamed if statements in a publication expose a person to hatred or ridicule, cause a person to be shunned, lower a person in the estimation in the minds of “right-thinking” members of society or disparage a person in his work. In the U.K, though, the burden of proof is with the defendant, while in the U.S. the plaintiff must provide the proof. Unlike in the U.S., there is also no provision in the U.K. that makes it harder for public figures to win a judgment–in the U.K., a public figure does not have to prove a statement was made with malice.

Almost all of the rest of the world

There is ever-expanding concern about the use of social media, especially Twitter, to post harassing, offensive and false statements that are defaming or invade another’s privacy. As one judge said: “Twitter as we all know is widely used by individuals and organizations to disseminate and receive information. It is inconceivable that grossly offensive, indecent, obscene or menacing messages sent in this way would not be potentially unlawful.” ([2012] EWHC 2157 (Admin) at {23}. In India, amendments to the Information Technology Act, 2000 (IT ACT) specify that defamation via a computer or communication can lead to a prison term of three years and a fine. (The United Nations Commission on Human Rights ruled in 2012 that the criminalization of libel violates the right to freedom of expression and  is inconsistent with Article 19 of the International Covenant on Civil and Political Rights. The impact of this ruling, if any, is not part of the discussion in this article.) 

Now, let’s consider liability if you or an employee is the “retweeter”:

U.S.

If you retweet a libelous statement in the U.S., you or the company you work for  may be protected from defamation liability based on Section 230 of the Communications Decency Act, which states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Simply put, this means you cannot be sued for something you retweet, even if the original tweet is libelous, so long as the libelous content was created by a third party. However, if you did have control (it was KitchenAid’s corporate Twitter account)  or you add something defamatory, you could be held responsible. 

United Kingdom

Keir Starmer QC was addressing the London School of Economics about social media in 2012 when he was asked: “Is it an offense to retweet something grossly offensive?” He replied: “You retweet, you commit an offense under the Act.”

The “Act” is the Communications Act, which outlaws sending a tweet that is “grossly offensive or of an indecent, obscene or menacing character.” A person can be prosecuted if he “causes any such message or matter to be so sent.”

For example: In 2012, the British Broadcasting Corporation settled a libel suit for about $300,000 with a UK politician. (The BBC reported that he was involved in a child sex abuse scandal but should have known the statement was false.) The UK politician then sought libel damages from at least 20 “high profile” people who tweeted and retweeted the report. 

Because tweets cross borders so easily, Twitter users in the U.S. and elsewhere should take the UK law into account.

India

Some legal scholars in India say that even accidentally retweeting an offensive tweet can create liability.

Freedom of Speech?

While freedom of speech in the U.S. is a constitutional right, legal exceptions make that right limited. For example: Speech that involves incitement, false statements of fact, obscenity, child pornography, threats and speech owned by others are all completely exempt from First Amendment protections. The U.S. Supreme Court has ruled that the First Amendment does not require recognition of a privilege for those stating opinions. Therefore, the  position that nothing should stand in the way of unabashed free speech on the Internet is like the ostrich with its head in the sand. Defamation and speech intended to inflict severe emotional distress is not protected.States can and do regulate this type of speech.

So here is the takeaway:

If you or an employee tweets or retweets something defamatory, you may face a libel claim. It doesn't matter how quickly you delete the entry or whether you follow up with a correction or an apology. It also doesn't matter where in the world you are.

Disclaimer: The information contained in this article is provided only as general information and may or may not reflect the most current developments legal or otherwise pertaining to the subject matter hereof. Accordingly, this information is not promised or guaranteed to be correct or complete, and is not intended to create, or constitute formation of an attorney-client relationship. The author expressly disclaims all liability in law or otherwise with respect to actions taken or not taken based on any or part of this article.