Why Facebook and Twitter Should Sue Donald Trump

Yesterday professional loser Donald Trump declared he was suing Facebook and Twitter, two private companies, for “violating his 1st Amendment rights” when they banned him for his repeated violations of their terms of use, both through spreading violent content and encouraging said violence, and using their platforms to increase the damage of a worldwide pandemic through spreading misinformation and lies.

Despite this obviously going nowhere, as private companies have the right to drop a customer of their service for any reason, not only what’s in the agreed upon by the customer terms of service, it would be a good move for both these companies to sue Trump right back, if for nothing else to dissuade future grifters from the attempt.

Here are the potential complaints they can bring for a suit:

Defamation

Despite most defamation cases being personal, companies have a right to sue for damages (though not “personal injury”) if they are being willfully defamed and they can demonstrate losses from the defamation.

Donald Trump has been using his lies about their actions and about what they do and do not do to people in his cult to encourage his followers to leave them, block them, attack them, and at times to directly violate their terms of service, including moderation on his Big Lie that the obvious loser of the election actually won. As such, they can claim that they are losing revenue based on those members who are conned by Trump, as membership numbers drive the ad revenue of social media platforms. They can also claim his defamation is harming their stock price.

Generally corporate defamation suits must meet three requirements. An actionable statement must be untrue, it must be made in writing or verbally to a third person, and it must cause the corporation damage. Since all three of these are easily demonstrable, this may be an easy case to pursue, and will if nothing else put pressure on Trump’s latest dubious lawyers to drop their suit.

Copyright Infringement

While not directly a legal action against Trump, this could be brought against one of his sycophants, Steven Miller. Miller recently launched a Twitter clone social media platform, which is substantially identical to Twitter’s basic setup. While there are many social media platforms (the idea), the format GETTR uses is eerily similar to Twitter’s interface (the expression).

To wit:

“In order to qualify for protection, a work must be an expression with a degree of originality, and it must be in a fixed medium, such as written down on paper or recorded digitally. The idea itself is not protected. That is, a copy of someone else’s original idea is not infringing unless it copies that person’s unique, tangible expression of the idea. Some of these limitations, especially regarding what qualifies as original, are embodied only in case law (judicial precedent), rather than in statutes.

In the U.S., for example, copyright case law contains a substantial similarity requirement to determine whether the work was copied. Likewise, courts may require computer software to pass an Abstraction-Filtration-Comparison test (AFC Test) to determine if it is too abstract to qualify for protection, or too dissimilar to an original work to be considered infringing. Software-related case law has also clarified that the amount of R&D, effort and expense put into a work’s creation does not affect copyright protection.

Evaluation of alleged copyright infringement in a court of law may be substantial; the time and costs required to apply these tests vary based on the size and complexity of the copyrighted material. Furthermore, there is no standard or universally accepted test; some courts have rejected the AFC Test, for example, in favor of narrower criteria.

The POSAR test, a recently devised forensic procedure for establishing software copyright infringement cases, is an extension or an enhancement of the AFC test. POSAR, with its added features and additional facilities, offers something more to the legal and the judicial domain than what the AFC test offers. These additional features and facilities make the test more sensitive to the technical and legal requirements of software copyright infringement.”

Summary of that is that if it can be shown that the interface is too similar to Twitter, they can sue for infringement and claim either a percentage of revenue (which there is little to be found) or force it to be shut down.

Damages For Violation of Terms of Service

In almost every agreement no one reads for these platforms, there is included three major items of note:
1) They may change the ToS at any time
2) Legal complaints must be handled by arbitration
3) Violation of the ToS can lead them to moderate, suspend, expel or pursue damages from a user, or any/all of those

The wording is different, but they all tend to contain these three items. Which means that Trump agreed to follow any changes to the ToS, including censoring whatever they wished, he agree to arbitration instead of lawsuits, and he agreed that they could pursue him for damages incurred by his violations.

Well, that means any case he brings about complaining over their ToS is null and void due to his own agreement. It also means that he is in violation of the arbitration agreement, which they can also file a lawsuit over (though a minor one with a small chance of winning, so I’m not including it as a path here). And it means that any damages they can show for their own stock price, etc, based on his violations using their platform to defame them or others.

Conclusion

Donald Trump as usual has far more legal liability than leverage. It’s time a company with the resources to handle it and the profit incentive to pursue it took him to task and slapped his SLAPP suits down.

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