Thread by @lexlanham

2 things going on:

1. blue checks given out for free to certain celebs/big accounts w/o account owner's consent, despite twitter announcing blue checks would only be for paid subscribers
2. blue checks appearing on accounts of dead celebs

any viable causes of action? (1/25)

first, a lot of state unfair competition laws contain prohibitions on false endorsement.

colorado, for example, specifies that "a person engages in a deceptive trade practice when, in the course of the person's business, vocation, or occupation, the person...

(2/25)

knowingly makes a false representation as to...sponsorship [or] approval...[or] knowingly makes a false representation as to affiliation, connection, or association with...another."

Colo. Rev. Stat. Ann. § 6-1-105
law.justia.com/codes/colorado…

(3/25)

did twitter, in the course of its business, knowingly make false representations as to sponsorship or approval by celebrities like @StephenKing when it bluechecked them w/o their payment or permission? sounds like a reasonable argument. (4/25)

https://twitter.com/lexlanham/status/1649207173413498883?s=20

how do we know the representation that the gifted blue check makes is false?

it was very widely reported that twitter said beginning 4/20 it would "remove the blue checks from accounts that don't pay a monthly fee to keep them." (5/25)

now it's 4/22 & lebron james, stephen king, william shatner, & others have received blue checks w/o paying. (6/25)

usnews.com/news/business/…

are the blue checks "endorsements" of twitter according to the FTC's guides? maybe not, if they're not "advertising messages." but... (7/25)

...but large accounts do sometimes promote tweets--say khloe kardashian's tweets about migraine med nurtec--so it's worth asking whether, when a tweet IS an ad, an unpaid-for blue check can then be deemed a false message IN an ad. (8/25)

buzzfeednews.com/article/tanyac…

more to the point, section 5 of the FTC act prohibits ''unfair or deceptive acts or practices in or affecting commerce." telling everyone blue check equals paid account & making some high-profile accounts blue-checked w/o their paying for it does seem deceptive. (9/25)

does it affect commerce?

sure, it may well lead more twitter users to pay to subscribe like their celeb/athlete idols appear to be doing. (10/25)

how about the lanham act? under 43(a) false endorsement occurs when someone's identity is connected w/ a product or service in such a way that consumers are likely to be misled about that person's sponsorship or approval of it. (11/25)

i haven't seen a lot of case law on whether the use needs to be "in advertising" or merely commercial & what constitutes commercial use--the focus is usually on the likelihood of confusion, the plaintiff's identifiability, & whether the use is protected under 1a ... (12/25)

(as an expressive work, etc.) so these uses might or might not meet the low bar for being commercial if they do create a LOC & aren't deemed speech. (13/25)

for lanham act 43(a)(1)(b) false advertising, we need the false representation (e.g. "stephen king paid twitter for the blue check") to be in commercial advertising or promotion. (14/25)

i parsed the "in commercial ad/promotion" requirement in "false influencing" starting at page 103:
law.georgetown.edu/georgetown-law… (15/25)

i wrote "the requirement does not limit 43(a)(1)(B) claims to traditional forms of advertisements like television & magazine ads, but encompasses a broad range of practices..." (16/25)

"false advertising case law has repeatedly stressed that advertising and promotion must be 'aimed at the consuming public and intended to influence buying decisions.'" (17/25)

courts range on how they interpret the requirement. a few have held amazon product reviews, an individual's product reviews on their review site, & an article in a trade journal did. (18/25)

but giving some accounts a blue check on a microblogging platform might well fail to qualify as making a false representation in commercial ad/promotion. (19/25)

43(a)(1)(B) also requires a false statement or representation, & under case law in some jurisdictions a court could find there's no "statement" here, just an implied statement or an omission. (20/25)

for comparison, at least one fed court has held influencer nondisclosure that content was sponsored qualified as a false statement & another held it did not (it's just an omission). (21/25)

lastly, state right of publicity laws vary tremendously but in most states i think viability would hinge on the question of whether this use is one in adv'g/promotion or at least a commercial use.

if yes, then it does look like use of someone's NIL w/o their consent. (22/25)

if the celeb is dead it might make it less likely that consumers are confused as to their paying for the blue check, but ofc someone alive is controlling their account, so the consumer expectation (that someone behind the account paid for the service) isn't so different. (23/25)

and many states have statutes or common law RoPs that include posthumous rights, so the analysis might not change much if twitter is promoting its services using anthony bourdain's name versus stephen king's. (24/25)

ok, just some quick initial thoughts so chime in & let me know what i got wrong or am missing. (25/25)

oh & i know the checks aren't ACTUALLY blue @RSGAT