Is Kayne West’s Tweet Grounds for Breach of Contract Suit?
Kanye West is no stranger to hyperbole, but his latest antics could lead to significant legal liability. In February, West tweeted: “My album will never never never be on Apple. And it will never be for sale… You can only get it on Tidal.”Is Kayne West’s Tweet Grounds for Breach of Contract Suit?
Kanye West is no stranger to hyperbole, but his latest antics could lead to significant legal liability. In February, West tweeted: “My album will never never never be on Apple. And it will never be for sale… You can only get it on Tidal.”
As a result, fans rushed to sign up for the subscription-based music streaming service. Six weeks after the release, the album was made available on other streaming services, iTunes, and Kanye West’s own website. Justin Baker-Rhett’s resulting class-action lawsuit alleges that West and Tidal deceived consumers about the exclusivity of the album, The Life of Pablo. According to the aggrieved fan, Kanye and Tidal essentially used social media to perpetrate a bait and switch. It cites that Tidal’s subscribers tripled in the wake of the tweet.
The lawsuit may turn on whether a court determines West’s tweet is a legally binding contract. His inclusion of the strong language of “never, never, never” makes a stronger case that the tweet constituted an offer, which consumers accepted by downloading his album. West is also a part owner of Tidal, which could make his statements more actionable.
Class-action members will also have to prove damages. The suit primarily focuses on personal information Tidal obtained from consumers when they subscribed to the streaming service, since many Kanye fans simply signed up for a free trial of Tidal to download the album.
In its defense, the streaming service will likely argue that it needed to collect some basic information from users. If the company can show that it did not later seek to profit from using the personal data, it may have greater success defending the suit.
For other businesses, the case represents an important reminder that social media can quickly lead to unforeseen legal liability. In addition to the risk of private lawsuits, the Federal Trade Commission (FTC) is also policing social media for fraudulent and misleading advertisements. The agency has advised in recent guidance regarding endorsements:
If an endorser is acting on behalf of an advertiser, what she or he is saying is usually going to be commercial speech – and commercial speech violates the FTC Act if it’s deceptive. The FTC conducts investigations and brings cases involving endorsements under Section 5 of the FTC Act, which generally prohibits deceptive advertising.
Ironically, no matter how the lawsuit is resolved, it is unlikely that Kanye West will think before he tweets.