Category: social media

Commissioner Breton writes a letter: a post in praise of the one-page formal document

The value of X – making sense of a re-branding, from a lawyer’s perspective

A close reading of Twitter’s legal letter to Meta: a guided tour of a weak litigation letter

7th July 2023

This is a close reading and exposition of the letter sent on behalf of Twitter to Mark Zuckerberg, the chairman and chief executive officer of Meta.

The letter is dated 5 July 2023 and has been published at the Semafor news website.

For the reasons set out below, this letter reads to this English litigation lawyer as being weak. Perhaps that view is wrong, and that there is some super-duper legal-magic which an American lawyer can see in this letter and which this post cannot.

But unless there is something which this post is missing, this is about as weak a litigation letter as can be, without the letter saying nothing substantial at all.

*

Please note that I am not an American lawyer, and so everything which now follows in this post should be read subject to this proviso.

In particular, I am an English lawyer (though trained at an American law firm in London) with twenty years of various experiences as a litigator, usually for potential defendants at early stages of disputes. This means I have read more litigation letters than is good for any human being.

Litigation letters really do comprise an odd and distinct genre of literature.

There is sometimes a lot going on – and sometimes a lot not going on – in a litigation letter.

You need to be able read what is there, and to work out what is not there.

*

Let us begin with the first paragraph of the the letter sent on behalf of Twitter to Meta:

First you will see the strange “as successor in interest” formulation of who the letter is being sent on behalf of. This is because of this recent business news:

Nothing in this post rides on this strange formulation, but it is worth noticing in case X Corp ever needs to establish any legal rights to sue.

*

What is more immediately interesting is the “Based on recent reports…”.

This is early warning sign of a weak letter.

The letter could say “we have direct evidence” or even “we have in our possession documentary proof which we attach”.

But the letter does not say either of these things.

Instead, the sender states that the evidence is only (news) reports.

The letter then connects these “recent reports” to “serious concerns”.

Again, this is mild.

There is no allegation of breach – just a statement of “serious concerns”.

A strong letter would begin with something like “we have in possession direct evidence [or proof] that [you are in breach of the following legal obligations]”.

But this letter backtracks straightaway from any such a robust position.

*

The first paragraph then seems to become aggressive: “systemic, wilful, and unlawful misappropriation”.

To an unexperienced eye this looks striking – and it is intended to look striking.

But such strident words have already been weakened by the framing.

Compare and contrast:

“we have in possession direct evidence that you are engaged in systemic, wilful, and unlawful misappropriation in breach of your legal obligations”

with

“based on reports we have concerns that you are engaged in systemic, wilful, and unlawful misappropriation”.

*

From this very first paragraph this does not look like a serious letter.

If the author of the letter could have put the allegations more highly then they would have done, but they did not.

And this is no doubt because they could not.

As a genre of literature litigation letters are often far more significant for what is not said than for what is said.

(This is perhaps the only thing litigation letters have in common with the prose of Jane Austen.)

A non-litigator may read such an opening as in this Twitter letter and be worried at what is said; but an experienced litigator will read that paragraph and will spot what is not said.

*

Now the second paragraph:

We know from the first paragraph that the allegation made in the second half of this paragraph is based on reports rather than on any other evidence and so this paragraph has to be read with this in mind.

As such the allegation is nothing more than a supposition.

The language “deliberately assigned…specific intent…in violation of…” again looks forceful, but is based only on (news) reports. No evidence is offered, let alone any proof.

(And in any case Meta denies any Threads engineers are former employees of Twitter.)

There are also no specifics in this paragraph – no particularisation at all.

There is instead the vaguest possible reference to“trade secrets and other intellectual property”.

Patents? Copyright? Trademarks?

Who knows?

Perhaps nobody knows.

*

The third paragraph goes over the page:

Here we have“highly confidential information” now thrown in as well, but again without specifics or particularisation.

*

Then there is the deft but weak “intends to strictly enforce”.

This is not even a clear and present threat to sue.

It is at best a threat to possibly sue in the future, maybe.

The “reserves all rights” is also a weak sign.

The relevant rights of Twitter will presumably exist regardless of any formal statement of reservation.

If Twitter is able to obtain civil remedies and an injunction without notice then it does not need to tell Meta that it is formally reserving its rights. Such words are ornaments not instruments.

*

And now look at what is not here: there is no deadline.

There is no ultimatum.

There is no “unless [x] by [y date] then we are instructed to do [z]”.

Nothing.

*

Now onto the fourth and penultimate paragraph:

This is framed as a warning.

But it is a warning that does not substantiate anything so far in the letter.

In essence, Meta is merely being told to conduct itself lawfully.

There is no evidence, still less proof, that Meta is doing any of the things mentioned unlawfully – just a bare accusation.

And again, as in the previous paragraph, there is no deadline or ultimatum for Meta to say it will comply with this demand.

There are no requests for undertakings.

Twitter also “reserves all rights” – but nothing in this paragraph sets out how those rights are going to be enforced.

This penultimate paragraph is thereby again just decoration.

*

And now the final paragraph:

At last there is some substance to the letter, but not much.

In English civil litigation there is an obligation on potential parties to a possible dispute to retain relevant evidence if they are aware that litigation is contemplated. I suspect there is a similar obligation in American civil litigation.

But in England sending a letter only to put a party on notice to retain documents for possible litigation is about level one on the litigation Richter scale.

It is the least possible substantial reason to send any litigation letter.

Such notice can make a legal difference in that Meta cannot now deny it is aware that litigation is contemplated.

This demand at least looks as if a litigation letter is doing something: that the letter is justified in its existence.

But this is a weak final paragraph to a litigation letter.

*

Taken in its entirety the letter is a bundle of suppositions, bare accusations, and reservations of (already existing) rights, with a small blow of the litigation trumpet with a notice to retain documents provision in the last paragraph.

No evidence is provided or even mentioned, let alone proof; there are no specifics or particularisations; no precise laws are cited; and there are no deadlines or ultimatums; and no demands for undertakings.

The letter does not even ask for a response – such as an undertaking or confirmation.

(And one thing a wise litigator does with a weak letter is not to ask for a response, as it looks yet weaker when no response will be coming.)

Overall, this is the weakest possible letter that could have been sent on behalf of Twitter to Meta – that is other than the letter having no substance at all.

*

Litigation letters have many (potential) audiences.

The best ones are written with the court in mind: how would this letter look to a judge? Those letters are the scary ones – and paradoxically the letters which are most likely to mean a case is resolved before court.

(The best way to avoid going to court in civil litigation is to prepare for court.)

Good litigation letters will also force the other side and their lawyers to think about their legal position afresh.

And then…

…there are letters which are the consumption of the client and/or the media.

Some clients sometimes demand that such a litigation letter is sent even when there is little or no case, and this is the sort of letter that gets sent in those circumstances.

The audience for this sort of letter is not the other side, still less the court, but the client itself – and perhaps the public and media.

*

Perhaps evidence will come to light of wrongdoing by Meta.

Nothing in this post – a disclaimer! – should be taken to mean that there is no possible legal case that X Corp can bring to enforce its rights against Meta.

But any such claim would require a very different letter to this one.

And that would need a very different letter – with evidence and specifics and particulars and deadlines and ultimatums. The sort of letter which this letter is not.

And if such a serious letter is sent (and published) then we will know that a serious legal situation is afoot.

But, for the reasons set out above, and from the perspective of an English litigation lawyer, this is not a serious letter.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Gordon Gekko, “Bloatware”, and Retained EU law

16th November 2022

There is a scene in the film Wall Street which almost gets you nodding-along with, if not cheering on, Gordon Gekko.

The scene is very carefully done.

It is a company’s annual stockholders’ meeting, and Gekko is about to speak from the floor.

You will know what he says.

But what you see is a stage full of non-plussed people in suits:

“Teldar Paper has thirty-three different vice presidents each earning over 200 thousand dollars a year. Now, I have spent the last two months analysing what all these guys do, and I still can’t figure it out.

“One thing I do know is that our paper company lost 110 million dollars last year, and I’ll bet that half of that was spent in all the paperwork going back and forth between all these vice presidents.”

*

The point is – or seems – inarguable.

And having got his audience – and us – onside Gekko then subverts us with his “greed is good” exhortation.

(Though even then he has to slip in “for lack of any better word” to make the sentiment expressed palatable.)

And if you find yourself thinking “but actually…”, just think of those thirty-three vice presidents all on that stage.

You cannot help but think he may have a point – doesn’t he?

*

Of course: that scene is a combination of clever writing and clever visual rhetoric.

And it is easy to depict things as, in effect, bloated – and to get claps and cheers.

But sometimes what appears bloated has a less obvious purpose.

Take, for example, the new owner of Twitter.

This is a tweet from him:

And this is what then happened:

Whoopsie.

Many who logged out of Twitter could not log back in, and so if you wanted to retain access you could not log out.

Or as Rorschach once put it:

*

The word “bloat” in this context is pejorative – a term used instead of thinking.

Just seeing a lot of something you don’t understand and do not like, and characterising (indeed, caricaturing) that something as “bloatware” is not enough.

There may be all sorts of hidden and semi-hidden things which are important, if not critical.

That is why a slow, methodical case-by-case approach is needed.

Else you can inadvertently turn-off something that matters, like Musk’s new Twitter did with phone-based authentication.

*

And now we come to our old friend, the Retained EU Law (Revocation and Reform) Bill.

The premise of this Bill is that the mass of European Union law that still has effect in the United Kingdom is bloatware.

One can imagine a certain kind of government minister gleefully tweeting:

“Part of today will be turning off the EU retained law bloatware. Less than 20% is actually needed for the United Kingdom to work!”

Or another minister posing in front of thirty-three shelves of regulations, instead of thirty-three corporate vice presidents.

Some would be tempted to nod – perhaps even you.

But.

As this blog has averred before, a lot of retained European Union law is important and beneficial, and we negotiated and implemented it ourselves.

A great deal serves a function – even if it will take time and effort to ascertain what that function is.

Perhaps some of it is statutory bloatware and can be safely discarded.

Yet the moral of Musk and authentication is that gusto is not enough.

Caution – for lack of a better word – is good.

***

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***

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

Musk and the three ways his acquisition of Twitter shows a remarkable approach to legal risk

11th November 2022

The acquisition of Twitter by Elon Musk is fascinating – at least to watch from the outside.

*

I am not an American lawyer, and I have not seen any of the legal or other documents related to the acquisition.

Like many of you, I only know what I have read in the media and watched play out on Twitter.

But from the information available to me, and based on twenty years’ experience as an English commercial lawyer, there are three elements of this acquisition which may show us things about Musk’s approach to the issue of legal risk.

*

The first element is the agreement to purchase, which Musk reportedly sought to get out of.

It would appear that he was unable (or unwilling) to do so, and so had to complete the purchase.

There were two things here which seemed odd.

The first odd thing was that an experienced business person like Musk, who presumably had access to legal advice, could even get seemingly trapped by such an agreement.

The second odd thing was his use of issues such as the number of bot accounts as a basis to get out of the transaction.

It seemed to me that such issues would normally go to warranties than to anything more substantial.

(In this context, a warranty would be a promise that a certain state of affairs existed which would allow a cash adjustment to the purchase price if the warranty was breached – and so the ultimate price of the purchase would be adjusted to what it would have been had the correct state of affairs been known.)

The issues he raised did not appear to me to be convincing, and many better placed observers were not convinced either.

It looked like Musk had put himself into a commercial situation he could not get out.

Few business people, following advice, would have allowed this to happen.

It was a curious situation.

*

The second element of this acquisition is the reported disdain for regulatory and other legal risks by Musk and his new managers once Twitter was purchased.

On this, the New York Times has reported:

Musk “was used to going to court and paying penalties, and was not worried about the risks”.

This is an extraordinary position for any experienced business person – but it does accord to his approach to risk as described in the first element above.

Some of the regulatory and other legal risks now facing Twitter are not trivial, from data privacy to employment rights.

The approach described by the New York Times is not even cavalier – it is outright denial and disdain.

What a curiouser and curiouser situation.

*

The third element is the very structure of the acquisition.

Musk may be conducting himself online as if he were a buffoon, but those lenders and investors also financing the transaction are serious people.

And if for some reason those lenders and investors were easily impressed by a charismatic figure, their legal advisers certainly would not be.

The position of these lenders and investors here is the greatest puzzle of all.

What were they thinking?

Reuters tells us these are the lenders and investors:

Even if Musk was in denial or disdainful about legal or other risk, these lenders and investors would not be.

Again, according to Reuters:

“Twitter faces interest payments totaling close to $1.2 billion in the next 12 months on the debt that Musk piled on it, following a string of interest rate hikes by the Federal Reserve, an analysis of the financing terms disclosed in regulatory filings shows.

“The payments exceed Twitter’s most recently disclosed cash flow, which amounted to $1.1 billion as of the end of June, according to financial disclosures Twitter made before Musk took it private on Oct. 27.”

Even if Musk’s antics were not foreseeable, the state of Twitter would have been obvious when lenders and investors did their due diligence.

Lenders and investors proceeded even though they were aware of the precarious financial state of Twitter.

Why would they do this?

Perhaps they were confident that Musk would suddenly turn the platform around and generate revenues in excess of costs.

Perhaps they took a view on the risks and thought they could just write it off if the investment went bad.

Or perhaps they were less interested in any return on investment than in the security they could enforce if the transaction went bad.

Some lenders plan on the basis that an investment will go well – and some lenders plan on the basis that it will not.

If Twitter defaults on the payments, it will be interesting – fascinating – to see what security is in place, if any, and what is enforced, if anything is enforced.

Even if Musk somehow though this transaction was free of risk, those who co-financed the transaction would not have done.

What will happen next?

The situation gets curiouser.

*

Musk’s acquisition of Twitter is almost as if it were taking place in a magical business world where legal and other risks do not really exist.

A fabulous world devised by, say, Italo Calvino rather than our mundane real world of contracts and regulations.

Perhaps the fantasy will hold, and Musk will pull off a great commercial success.

Perhaps.

But us trudging legal sorts are used to seeing the downsides.

And the utter lack in this transaction of any visible risk-based approach by Musk is remarkable.

If this transaction escapes the world of fantasy, then Musk and Twitter will need to brace, brace.

***

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

The comments policy is here.

 

Of “echo chambers” and “preaching to the converted”

10th November 2022

Some places – like courts and legislatures – have shared rules for discourse.

But courts and legislatures are not “echo chambers”.

Certain things are not readily said, and certain hard things are to be said softly.

This is not because there are not disputes – and some differences may be fundamental and life-changing.

It is because shared rules for discourse enable constructive engagements and facilitate important exchanges.

*

But.

For some on the internet, the slightest suggestion that there can be shared rules for discourse triggers (ahem) the instant accusation that you want to be in an “echo chamber” or that you “want to preach to the converted” or want to be in “a bubble”.

These phrases – clichés – are usually substitutes for thought.

Yet so accustomed are many to the shoutiness and rancour of internet exchanges that the merest suggestion that there can be shared rules for discourse is seen as some sort of assault on “free speech”.

Shared rules are not, however, undermining of dialogue – they instead make meaningful dialogue possible.

Shouting at people – either in real life or on the internet – is a form of monologue, especially if it inhibits the other person from engaging, or saying something they would like to say.

As such the real echo chambers and preached at choirs are not platforms where there are shared rules, but places where such rules are disdained.

Places like Twitter.

*

On this blog I will write things which a number of readers will disagree with: Brexit (where I am ultimately neutral in principle, though critical in practice), codified constitutions (where I am sceptical), electoral reform (where I am wary), and so on.

And the commenters on this blog – many of whom provide comments that are better quality and more informed/informative than my head post – will engage, often with other perspectives.

You can then form your own view.

Pre-moderation and my “irksome” rule prevents comments derailing the discussion.

(And, in practice, few comments are not published.)

As such, I do not think this blog is an “echo chamber”, or that I am “preaching to the converted” (though I sometimes wish I could convert more of you to my idiosyncratic views).

*

In practice, accusations such as “echo chamber” and “preaching to the converted” can be rhetorical devices to shut down unwanted forms of discourse.

The important thing is that if you want a platform that suits you then you should be free to use a platform that suits you.

And do not be afraid of comments such as “echo chamber” and “preaching to the converted”.

Hierarchies vs networks in the age of Musk and Mastodon

9th November 2022

Regular readers of this blog will know that central to my thinking about law, government and politics is the so-called Dunbar’s Number.

This number – which is about 125-150 for members of our species – is the number of individuals with which one can have meaningful relationships with at one time.

The implication of this number (in my view) for law, government and politics is that with any community or society larger in size than this number there will tend to be a limit on what can be done without shared rules and recognised commands and notions of status.

It is very difficult to be sustainably dominant merely on a face-to-face basis with large numbers of people.

One way of scaling upwards (and downwards) is by having hierarchies.

And with hierarchies we get the conceptual paraphernalia of lordship and kingship (and ladyship and queenship), with lower levels and higher levels.

But another way of scaling is more horizontal: networks and shared protocols.

Here certain signifiers and agreed rules and lore will mean that groups of people can interact.

What has made me think about this is the current contest between commercial social media platforms (like Facebook and Twitter) and the protocol-based Mastodon, of which I have become a great fan.

(And where I somehow now have 18,000 followers in just a few days.)

The commercial platforms are sometimes called “proprietary” because the software is owned by the corporation.

But they can also be regarded as “proprietary” by how they treat their users.

The new owner of Twitter, in particular, seems to see the users of Twitter as a standing asset to be exploited, by charging users for this or that.

The assumption seems to be that the users will stay and pay.

And the way the Twitter acquisition was structured and financed suggests that there has to be a high level of return very quickly.

Perhaps some users will stay and pay: but many will not.

And some will move to forms of social media where there is not one big corporation in charge, imposing its own standards (and whims), but lots of smaller platforms joined by optional or negotiated protocols.

If so, this will be nothing that new in human history.

Human activity often moves between from hierarchies and networks, and between cathedrals and bazaars.

Networks, of course, bring their own problems – especially when selflessness and self-restraint begin to fall away.

And corporations will tend to have better access to resources to finance and maintain the development of platforms.

But Elon Musk and others will not be the first to discover that the ways and means by which individuals will interact cannot easily controlled by those asserting and expecting dominance.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

The comments policy is here.

From Twitter to Mastodon

7th November 2022

At the end of last week – exasperated by Twitter and the antics of its new owner – I opened a Mastodon account.

In one way, this is of no wider interest to anyone but me: it is just one person preferring one social media platform to another.

But in other ways, I do think there is something worth commenting on about this shift by me and many others – and worth assessing whether or not it is significant.

(For what it is worth, I acquired over 9k followers on there in 48h hours, and a number of legal and other commentators have joined the site too – I have called this a “Lexodus”.)

*

Social media cannot be un-invented.

As long as a person has access to the internet and another person is willing to provide a platform for communication, there will be social media.

The particular platforms, however, will come and go.

Some of you will remember MySpace and Bebo and so on.

There is no reason why any one platform will always be the dominant platform.

And what is a business giant or successful commercial model at one time may not be a business giant or successful commercial model at another time.

For that is the nature of business and of technology.

*

On the face of it, I should have a “stake” in Twitter.

I once spent a couple of years of my life litigating the once-famous TwitterJokeTrial case so as to explain Twitter and social media to the English legal system.

And I have acquired around 240k followers for my main Twitter account.

I am as versed in the lore and the tides and the currents and the perils of Twitter as any old sailor is of those of the sea.

So why move from there?

Well.

First, I am not moving completely – I will still use it as a medium for “broadcasting” my posts and my content elsewhere.

But Twitter is now pretty much a hellsite and a cesspit.

Every time you log in, the list of “trending” topics will make any liberal person’s heart sink.

Quote-Tweets and pile-ons and instant unpleasant replies mean that any considered conversation is all but impossible.

*

Of course, much of this will be defended as “free speech!”.

But the free speech of one can mean the inhibition from speaking for others.

And that is as least as much of a free speech issue, if you think about it.

Twitter is structured so as to encourage rage-tweeting and it enables you to say the most vile things you can think of and get away with, just because you can.

I do not think it brings the best out of people.

I think social media can be done differently.

*

Mastodon is different from Twitter in many ways, some of which are partly unseen and difficult to grasp.

Instead of it being one big site, it is a lot of sites with a common set of protocols.

As such, it is de-centralised.

But once you are in, you can communicate with those who joined via other “servers”.

Yes, some of the jargon is initially inaccessible – but so were RTs, DMs, QTs, #hashtags, and so on, once upon a time.

And each of those servers is independent, and they form a federation as an aggregate.

This means decision-making is decentralised and different servers can have different rules and policies.

And if one server turns vile – or allows vile stuff – then it can be rejected by the others.

As a liberal I find this system, with its in-built checks and balances, a lot more attractive and welcoming than Twitter.

*

And what about in practice?

So far, the conversations and engagement on the new site have been pleasant and constructive.

As a worked example, click here for a question about Brexit which led to many helpful and informative replies.

Yes, some of the replies don’t directly engage the terms of the question, but you will see there is a general civility and calmness that contrasts with Twitter.

The longer character limits help too.

So far – and it is still an early stage – Mastodon seems a serious site for serious conversations.

*

You may not want to join Mastodon – and I know several of you are not on Twitter.

That may be wise.

But if you do want to try a social media platform wired to avoid many of the unlikeable things about Twitter then Mastodon is worth having a try.

I cannot recommend any particular server – and there are glitches for many when they try to join, and so you may need to be patient.

And if you do join, do say hello and mention this post.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

The comments policy is here.