Dismissal of X's Suit 'Huge Win' for Holding Social Media Accountable, Says CCDH

X alleged that CCDH violated its terms of service (ToS) when it used automated data collection, called scraping, for its research that criticized the platform for allowing what CCDH deemed disinformation to remain. Its report alleged that X was profiting from hate after Musk, following his purchase of Twitter, reinstated a number of suspended accounts of “neo-Nazis, white supremacists, misogynists and spreaders of dangerous conspiracy theories" (see 2308010034).

U.S. District Judge Charles Breyer for Northern California in San Francisco granted CCDH’s motion to dismiss in a Monday order (docket (23-cv-03836) describing the case as being “about punishing the Defendants for their speech.” Sometimes it’s unclear what drives litigation, said Breyer: “Other times, a complaint is so unabashedly and vociferously about one thing that there can be no mistaking that purpose. This case represents the latter circumstance.”

In addition to CCDH, X sued the group's U.K. counterpart, Netherlands-based Stichting European Climate Foundation (ECF) and Doe defendants, alleging that after CCDH, with ECF’s help, improperly gained access to its data, it then “cherry-pick[ed]” users’ posts to falsely claim in reports and articles that it had statistical support showing X is “overwhelmed with harmful content,” the order said. CCDH did so “to push ‘a contrived narrative to call for companies to stop advertising on X,’” causing the social media company to lose “at least tens of millions of dollars” in ad revenue and other costs, the order said.

X alleged CCDH used “data scraping” without its consent, something X’s terms of service (ToS) prohibit, but the ToS “did not define ‘scraping,’” said Breyer’s order. CCDH’s Feb. 9, 2023, report described a social media web-scraping tool called SNScrape that used Twitter’s search function to enable data collection. X claimed CCDH “scraped the X platform 'on numerous occasions,’” including for preparing the report, without permission.

X also alleged CCDH used ECF’s login credentials, aided by CCDH U.K., to access X data on social media analytics tool Brandwatch to prepare its research reports on the platform and determine how to use the data to “mischaracterize” it in its reports. In addition to “allegedly unauthorized access of X Corp. data,” CCDH presented the data “out of context in a false and misleading manner” in reports and articles, the order said, citing the complaint. Breyer agreed with CCDH that X failed to allege that CCDH’s conduct caused Brandwatch to breach its agreement with the platform.

CCDH argued that X failed to state a breach of contract claim because it didn’t adequately allege that any breach by Brandwatch caused the damage X seeks, said the order. X can’t seek damages for the independent acts of third parties based on CCDH’s speech, it said. The “tens of millions of dollars” X seeks in connection with CCDH allegedly causing Brandwatch to breach its contract with X “are impermissible,” the order said.

The American Civil Liberties Union, the Electronic Frontier Foundation and the Knight First Amendment Institute at Columbia University, which combined on an amicus brief in the case, hailed Breyer’s order in a news release. “The court’s ruling reaffirms that vital First Amendment protections apply to researchers and journalists who use digital tools like scraping to inform the public about the practices of powerful platforms,” said Esha Bhandari, deputy project director of the ACLU’s speech, privacy and technology project.

Alex Abdo, litigation director of the Knight First Amendment Institute, said the decision “sees Elon Musk’s lawsuit for what it is -- an effort to punish his critics for constitutionally protected speech and to deter researchers from studying his platform.”

CCDH moved to dismiss under California’s anti-SLAPP (strategic lawsuits against public participation) statute. It is designed to shield people and businesses that were unnecessarily targeted by another party to limit their speech. “The First Amendment and California’s anti-SLAPP statute protect anyone who scrapes publicly available websites and publishes newsworthy information about the data,” said Cindy Cohn, EFF executive director. The court “rightly saw through X’s chilling attempt to twist the Computer Fraud and Abuse Act and contract law to retaliate against a nonprofit that published critical reports regarding hateful content on X,” she said.