Would Twitter get Section 230 immunity in lawsuits filed over fake tweets with blue check marks?
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Plaintiffs lawyer Jay Edelson told Reuters that he is researching whether Twitter could be sued for giving blue check marks to fake accounts that misled consumers and corporate shareholders.
The theory, Reuters explains, is that fake tweets from corporate accounts given a blue check mark—once an indication of a verified account—harmed brand reputation and caused a drop in stock value.
Edelson said Twitter didn’t announce that its new verification badges were no longer a Twitter assurance of authenticity, according to the Washington Post. He thinks that the chaotic launch of the now-suspended system supports his arguments that Twitter was responsible for misleading tweets.
But Edelson and other lawyers filing suits would have to overcome Section 230 of the Communications Decency Act, which protects online publishers from lawsuits based on third-party content.
Three law professors who spoke with Reuters said Section 230 may not offer protection because the blue check marks were Twitter’s own communications, rather than user content.
Nor would Section 230 offer protection from corporate lawsuits alleging that the fake accounts infringed corporate trademarks, Alexandra Roberts, a professor at the Northeastern University School of Law, told Reuters. That’s because Section 230 doesn’t bar suits based on intellectual property violations.
Even if suits can bypass Section 230 protections, they still would have an uphill climb, experts told Reuters.
In trademark suits, corporate plaintiffs would have to show that fake tweets weren’t fair-use criticism or parody. And they would have to show that Twitter knowingly contributed to infringement.
And shareholder suits based on fake corporate accounts would still have to show that Twitter has responsibility for the conduct of its users, according to Reuters. Negligence isn’t enough under state anti-fraud laws, and fraudulent intent is needed under federal securities laws.