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Can You Sue Twitter if You're Fooled by a Fake Blue Check Mark?

By Steven Ellison, Esq. on November 29, 2022

Since Elon Musk took over, Twitter has been a free-for-all of fake news and misinformation. The coveted blue check mark, which used to mean Twitter had verified that an account was authentic, now looks like it is available for purchase to anyone at $8 a month through a Twitter Blue subscription. Verified accounts are not necessarily authentic any longer.

Musk says that the new verification system is supposed to reduce or eliminate bots and promote free speech. While perhaps a good idea (in theory), the rollout of the new Twitter Blue has been, by most accounts, a fiasco.

Trolls bought blue checks, set up seemingly authentic accounts as verified users, and through impersonation, mimicked politicians, celebrities, companies, and other public figures, including President Biden, Donald Trump, ESPN, the Las Vegas Raiders, and LeBron James.

Until Twitter suspended the program, these parody accounts wreaked havoc, deceiving many users. For example, Eli Lilly, a seller of insulin, took a 4% hit to its stock price when an imposter with a blue checkmark tweeted that insulin was now free. Scammers tricked housands of Twitter users into donating to scam charities with their credit cards. Meanwhile, Musk was shedding Twitter employees by the thousands.

If you were the victim of a fake account with a blue check mark, you might think about suing Twitter.

Think again.

Section 230 Immunity

Federal law protects Twitter from being sued for content posted by others on its platform. Section 230 of the Communications Decency Act declares that interactive computer services like Twitter cannot be held liable for information provided by another content provider.

This means that social media companies cannot be sued based on posts by others, such as defamation, misrepresentation, and fraud. Although there has been some talk in Congress about stripping them of this immunity, there doesn't look to be enough support for Section 230 reform to pass. So immunity it is.

Twitter's Terms of Service

Suppose you're not deterred by Section 230 immunity and want to try your hand at a lawsuit. You still have to deal with Twitter's Terms of Service (ToS). When you create an account and use Twitter, you agree to abide by the ToS. Whether you realized this or not, this created a binding contract between you and Twitter. And this contract, which was drafted by Twitter for Twitter, is unsurprisingly pretty one-sided.

Disclaimer of Warranties

Your first hurdle is overcoming Twitter's disclaimers. There's an entire paragraph, some of which is in capital letters, that essentially says Twitter makes no promises about the accuracy of any content on the platform. You also agree that Twitter disclaims any legally binding warranties relating to the platform. You use Twitter and what you find on it entirely at your own risk.

Limitation of Liability

Then you've got to get past another paragraph (all in capital letters) that legally limits Twitter's liability. It essentially says that Twitter cannot be held liable for all sorts of different types of damages, such as punitive damages, based on your use of the platform.

But that's not all. The ToS limits your total damages to the greater of $100 or the amount you paid Twitter in the past six months. So even if you win a lawsuit, what you could recover probably wouldn't reimburse you for your legal costs.

Forum Selection

Perhaps the principle is more important to you than the money. You are still determined to sue Twitter.

Read on.

The ToS contains what's called a forum selection clause. A forum selection clause dictates where you can bring a lawsuit. And Twitter's forum selection clause is exclusive. You agree that if you sue Twitter, you will do so only in state or federal court in San Francisco. Lotta good that will do you if you live in New York.

Inconvenient Forum Waiver

When the most you can recover is $100, having to bring a lawsuit in another state isn't worth the cost. But, courts can sometimes ignore forum selection clauses if the litigant meets the legal standard of proving the chosen location is inconvenient. Maybe you think you could persuade a judge in your own state that having to sue in San Francisco is "inconvenient."

But Twitter's ToS is prepared for this argument. One of the sentences in the "General" section concludes by saying oh, by the way, you waive any objection as to inconvenient forum. That means that not only do you agree to sue in San Francisco, but you also give up any right to argue that suing in San Francisco is inconvenient.

Good Luck

So, where does that leave you? You could sue Twitter despite its immunity, but only in San Francisco, and the most you could get, even though you almost certainly won't win, is $100. That's not even worth the principle.

If you're mad at Twitter, join the crowd. If you're mad enough to sue, let it go. A lawsuit is virtually futile. If you want to get back at Twitter, your best bet is to cancel your Twitter account and join a different platform.

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