Surprise Twitter Checkmarks Open Complicated Path to Liability

Celebrities looking to sue Twitter Inc. over unsolicited blue checkmarks—after Elon Musk said they’d be reserved for paying customers—would have to navigate shifting facts and an uncertain, complex legal landscape.

Public figures including Steven King and LeBron James immediately denied subscribing to the $8-a-month Twitter Blue service as indicated by the blue check in their profiles.

Other purported subscribers include the accounts of deceased celebrities such as former NBA star Kobe Bryant and television host Anthony Bourdain. Some have tried to distance themselves from the premium service, which has been derided as toxic enough to make #blocktheblue a trending topic.

The questionable subscriptions could implicate federal and state false endorsement and false advertising laws, as well as state measures covering right of publicity and unfair business practices, attorneys say. The toxicity surrounding the paid-for checkmarks could also provide a route for unhappy recipients to extract damages.

But how that would shake out would be complicated. The question of whether “subscribed to Twitter Blue” implies payment or endorsement isn’t straightforward, as the celebrities are actually users. Each claim requires different elements and comes with different potential for damages. Even parsing where someone can sue and under what state’s law raises unresolved legal questions.

Two days after the April 20 emergence of the surprise subscriptions, intellectual property and advertising law professor Alexandra J. Roberts of Northeastern University posted a long Twitter thread about liability. She told Bloomberg Law in an interview that it’s difficult to be concise because “the laws governing deceptive advertising and right of publicity are so many and so varied.”

“They’re plausible theories, but not easy claims to win,” Roberts said. “Questions that are common to some—but not all—include whether a check constitutes endorsement of the service, whether it qualifies as advertisement of the service.”

Making it even more difficult is that the facts surrounding the checkmarks are moving targets, while damages depend on the situation of the particular celebrity at issue. Many of the elements of potential claims hinge on consumer perceptions, which can evolve rapidly—especially online. And Musk’s constant tweeting at celebrities unhappy with their checks only stirs the pot.

“The facts are changing all the time. Musk keeps dropping all these bombs on people to his great delight, and the next one might undo everything,” Santa Clara University technology and IP law professor Eric Goldman said. “All that stuff is just legal quicksand if it ever got to court. Musk is just changing the factual setup to the legal question hourly.”

Twitter responded to a request for comment and Twitter Blue data with a poop emoji, which Musk tweeted on March 23 had been set up as an automated response to press queries.

What’s an Endorsement

Traditionally, blue checkmarks designated the accounts of famous people, government officials, and journalists who had verified their identities. Musk bought Twitter in October 2022, and the next month announced an overhaul and re-launch of Twitter Blue. He increased the price, expanded the suite of features, and added a blue “verification” checkmark.

Initially users profiles would indicate if they were a Twitter Blue subscriber or “legacy” checkmark, but Musk had also announced plans to remove legacy marks. On April 1, all blue check profiles indicated “either” a legacy or subscriber, and legacy checks disappeared—mostly—by April 20.

Many accounts with large follower bases retained or regained their checkmarks—all of which now say “This account is verified because they are subscribed to Twitter Blue and verified their phone number.”

That could create problems under the Lanham Act’s false endorsement provision. That bars any “false or misleading representation of fact” that makes people think an individual is associated with a product.

“Presumably when consumers see that the celebrity has purchased a product, they’d be more apt to buy that product as well. The fact that it’s untrue could create problems,” IP attorney Joseph Lawlor of Haynes and Boone LLP said. “A lot of these people really protect their images, so I wouldn’t be surprised if they’re already sending demand letters.”

But it might not be that simple. Enumerating lists of customers or users is ordinarily permitted, and technically the celebrities do use Twitter, except now they’re given all the extra perks otherwise reserved to paid subscribers, Goldman said. Roberts also said it’s unclear whether the check legally constitutes an endorsement or advertisement, saying “there’s an argument that Twitter is not doing any of those things.”

Establishing the likelihood of consumer confusion could be a complicated question and a moving target. Goldman said Musk could argue that it’s become widely known that celebrities didn’t necessarily choose to subscribe or pay, including through his tweets to his 136 million followers. But the messaging on Twitter Blue in general hasn’t been consistent, so it might not be a “true disclosure,” he said.

“The disclosures about what a blue check means have changed a fair amount, and rapidly,” Goldman said. “It’s a source of confusion.”

Other Avenues

There’s no federal right of publicity law, and the details of state laws vary. Generally, the law gives individuals control over commercial uses of their name, image, and likeness. But Lawlor sees the false endorsement claim as a stronger approach than the right of publicity.

“They’re putting themselves on the platform, so I don’t know if it’s a right of publicity issue,” he said.

Most courts have indicated the celebrities bringing a publicity rights claim would have to reside in the state with the law they’d like to apply. Indiana and Washington purport to cover violations of anyone’s right of publicity, but courts have been hesitant to impose their laws on non-residents, including in a case involving Marilyn Monroe.

False advertisement would be difficult to bring because federal and most state laws generally reserve the right of action for competitors of the business in question. States also have a wide variety of false advertising laws, so the potential for a claim would be case-specific, Northeastern’s Roberts said.

The differences in state laws and in celebrity circumstances also make a class action unlikely, Lawlor said. He didn’t think the celebrities could be certified for damages, though he said it might be possible for the purposes of liability.

What’s the Damage

Damages could be difficult to establish even for a successful claim. The cleanest route, attorneys said, would be an award based on how much the particular celebrity would have commanded for their endorsement.

“People who get paid a lot of money to endorse on social media would be able to get more damages than someone who doesn’t,” IP attorney Jennifer A. Van Kirk of Lewis Roca Rothgerber Christie LLP said.

Reputational harm is another possible damages outlet. Lawlor pointed to a “toxicity” around the blue check and Musk, and a perception that subscribers endorse his politics.

Some users have also complained about the platform prioritizing Twitter Blue subscriber posts over ones that get more engagement, another negative association. In November, popular Twitter user @dril concisely tweeted to his 1.8 million followers about those subscribers: “absolutely block on sight.”

“I think at this point he can no longer salvage the blue check,” Goldman said. “The blue check itself has become a poisonous brand for Twitter, and it’s unclear how they salvage it.”

But establishing and valuating damage to a celebrity’s reputation would be much more difficult to prove, Van Kirk said. She did note that some states have right of publicity laws that allow plaintiffs to collect punitive damages, which could lessen the need to prove specific dollar amounts if malice or fraudulent intent can be showed—but even that might be difficult given the broader legal ambiguities at play.

Goldman said “there’s a certain bloodsport” to trying to assess Twitter’s liability as the site’s owner trolls various legacy accounts. But Goldman said it could be moot, pointing to data indicating almost no accounts with legacy checks have subscribed amid a broader decline in users and revenue. And he said he doubts Musk and his company “have a plan B.”

“That he thinks this is funny shows how little regard he has for the legal consequences of his actions,” Goldman said. “He gets away with it mostly. But I don’t think Twitter will be a functional entity by the time the court finds on these data points.”