By David Rose
Happy new year from Rouse Lawyers! We’re less than two weeks in, and 2018 already looks a bizarre, parallel universe. The Hottest 100 has changed dates, the weather is warmer than ever, and the President of the United States is in a button-measuring contest with North Korea. Did we accidentally ingest something at the New Year’s party, or is this reality now?
President Trump’s most recent outburst has prompted some people to ask why Twitter allows him on their platform at all. Activists have targeted Twitter’s CEO, Jack Dorsey, claiming that he is “complicit” in “endanger[ing] the world”. The movement is backed by thousands of Twitter users, many of whom believe that Trump is in violation of the Twitter Rules. It seems like everybody’s asking the same question: why doesn’t Twitter just ban Donald Trump?
One of the more cynical answers is that Trump is a money-maker for Twitter. It’s hard to know exactly how many people use Twitter, but estimates put the number at around 125 million. To put that in perspective, Trump’s feed alone has 46.4 million subscribers. That’s 37% of all Twitter users, without counting those of us who read his tweets in the newspaper, or on Facebook. If Twitter were to ban Trump, experts estimate they could lose up to two billion dollars. The President may be stupid, but Twitter certainly isn’t. They won’t kill their cash-cow without a good reason.
The President Can’t Break the Rules
Unfortunately for those who dislike Trump’s Twitter rants, it has emerged that he, quite literally, cannot be in breach of Twitter’s rules. Much like Trump himself, the reason for this is pretty simple: he’s a world leader. On Jan 5th, Twitter announced that they would exempt world leaders from the rules that govern their other users. Twitter’s argument is that blocking world leaders from Twitter would be damaging to global discussion. Therefore, Trump (and all other leaders) cannot be in breach of the Twitter rulebook. It’s worth noting that in the 21st century, Twitter isn’t too dissimilar from television, or newspapers. Nobody would complain about a news agency giving a platform to a Trump by printing his comments or airing them. Twitter could be said to occupy a similar space.
Could the Public Force Trump Offline?
Forcing Trump off Twitter isn’t something the public can do unless an angry mob of computer programmers storms the Twitter offices. The main reason for this is the doctrine of privity of contract. “Privity of contract” is a simple, yet powerful idea. Under this rule, only people who have signed a contract can exercise their rights under it. When the President signed up with Twitter, he didn’t make a contract with the entire world; he made a contract with Twitter. Accordingly, even if he breaks every one of Twitter’s rules, in the end, he’s only answerable to Twitter. The public simply don’t get a say in Donald Trump’s contract with Twitter.
The other reason that Trump won’t be kicked off is that Twitter has repeatedly decided to continue enforcing their contract with him. Under standard contract law, when a party breaches a contract, the contract does not cease to exist. Rather, the other party gets to decide what to do with the contract. Unless the breach is so serious that it prevents the contract being enforced at all, the other party can decide to continue enforcing the contract. Alternatively, they can decide to terminate it due to the beach.
When faced with Trump’s alleged breaches, Twitter has elected to stay silent, and allowed Donald Trump to continue using their platform. Some people would consider this a decision to continue enforcing the contract. Of course, saying nothing at all isn’t conclusive proof of anything. This isn’t a Ronan Keating song. Let’s take an Australian approach.
The Australian Approach
Under Australian law, you’re required to give objective, unequivocal words or conduct which indicate how you’re going to respond to a breach. Twitter’s World Leader policy has certainly done that, in our view. Twitter has given an unequivocal statement that Trump is welcome on their platform. From an Australian legal perspective, there’s little doubt that the contract between them is still on-foot. Accordingly, it’s likely that Twitter will allow Trump to stay for as long as he’s President.