And what if a tweet caused billions of damage?

And what if a tweet caused billions of damage?

Adi Marcus, Adv.
December 25, 2022

Are owners or operators of internet platforms have responsibility for the content that the users publish, and what courses of action are open to companies that find themselves commercially harmed by content that is published by users (usually anonymous) on different social platforms?

In November 2022, in the name of the principle of "freedom of expression", the new owner of Twitter, Elon Musk, announced that any user who is willing to pays 8 dollars per month, will be able to get an account with "blue verification", which until then was reserved for entities and public figures, companies and celebrities, and was granted to them only after a strict verification procedure. The move was just the latter in a number of substantial moves made by the new owner, which in essence removed the protections and barriers that the platform had been using to monitor content and user activity. The anticipated mayhem did not take long to materialize. Just days after the change was announced, a fictitious, blue-verified, Twitter account under the name of pharmaceutical giant Eli Lilly tweeted that "from now on, insulin will be free for all." The result? Eli Lilly's stock fell by almost 4.5% overnight and about 15 billion dollars of company profits "disappeared" into thin air.

Presumably, a company which finds itself suffering damages as a result of the publishing of such fraudulent content can sue the users themselves for using its name and impersonating it. However, this is a problematic process both due to the difficulty of locating the users behind the publication and due to the fact that even if the real publisher can be located, many of those users hide behind labels of "parody" or "legitimate criticism" which often prevent the imposition of legal liability. On the other hand, if the company wishes to file a lawsuit against the platform itself – it is a fact that Courts worldwide have the tendency to grant a broad immunity to owners and operators of internet platforms and social networks from lawsuits arising from content published by users and granted them broad discretion over content by acknowledging the supremacy of their community rules, out of a collective desire to keep the internet as a "last have" for true freedom of expression.

However, this immunity is not absolute, and there have been cases (albeit few and in exceptional circumstances) in which platforms were found to be responsible for the content of users or for the inappropriate use made by users of the intellectual property of third parties that constitutes an infringement of their copyrights (for example: FTPs and torrents where actions to block such were successful in light of the violation of the intellectual property rights of others by those who use them).

The question remains, in a case like the current scenario, when the platform knowingly canceled an existing protection that was built into the platform and was proven to be effective, in an attempt to increase its profits, will Twitter be granted the same immunity from a lawsuit? Will the fact that even after Eli Lilly requested the removal of the content, Twitter continued to display the problematic "tweet" for more than a day be held against it? Does the fact that the platform actually allowed users who have no connection to the company use the company's logo and trademarks in infringement of its rights, and even charged them money for doing so, be evidence of improper activity, even if the account is defined as a parody or a joke?

It is possible, but the success of such a claim depends largely on the ability of the plaintiff and its lawyers to prove that the platform did breach even the minimum duty of care required of an open platform that allows user content and did not act properly or take necessary steps to reduce the damage when this was brought to its attention – both, significant obstacles that are not easily proven and require a calculated and professional lawsuit. Beyond that, the outcome of this procedure can not be known in advance but will surely redefine the boundary between freedom of expression and freedom from expression in the Internet world.