X Cites Breaches of Legal Obligations in Opposing Motions to Dismiss

X's fraud case is not about defendants’ speech but their “audacious breaches" of legal obligations, said X's opposition Friday (docket 3:23-cv-03836) in U.S. District Court for Northern California in San Francisco to the November motion of the Center for Countering Digital Hate (CCDH) and its U.K. counterpart to dismiss X's July 31 complaint (see 2311200040).

Formerly Twitter, X also sued Stichting European Climate Foundation (ECF) and Does 1-50 in the breach of contract complaint, alleging the organizations ran a “scare campaign” to "drive away advertisers," resulting in “tens of millions” of dollars in damages.

CCDH’s motion to dismiss said X would have the court “punish” the center for its speech, and “silence others” who might criticize the social media company in the future. X "conspicuously” hasn’t asserted a defamation claim against CCDH, and “understandably so” because X can’t allege CCDH said anything “knowingly false” about it, nor does X “wish to invite discovery on the truth about the content on its platform,” the motion said. Instead, X “ginned up baseless claims” purporting to take issue with how CCDH gathered data that formed the basis of its research and publications, it said.

In its opposition, X said claims alleged in its amended complaint “are not about the lawfulness of any public statements, but about CCDH’s unlawful and improper access of X Corp.’s data." Acknowledging it hasn’t asserted a defamation claim in the amended complaint, X’s opposition says its claims “very clearly seek redress for flagrantly unlawful acts” by all defendants “before CCDH could have engaged in any allegedly protected activities.”

The defendants “knowingly undertook in concert with the intent to cause serious harm to X Corp,” conduct that “exists independently from CCDH’s purported speech-related activities,” said the opposition. CCDH’s motion asks the court to “approve its vigilantism because it was in furtherance of an ideological cause,” said the filing. The court shouldn’t disregard the allegations in the complaint, or “make factual determinations at the pleading stage, to approve of such conduct,” it said.

ECF and CCDH engaged in “a concerted course of conduct that was undertaken knowingly and intentionally to harm X,” said the opposition. Their conduct is “outside the scope” of California’s Strategic Lawsuits Against Public Participation statute, so CCDH can’t “invoke that statute to absolve itself of illegal conduct that is separate, independent, and severable from any purportedly protected and speech-related activities in which CCDH engaged,” it said.

CCDH breached its contractual obligations by scraping data from X in violation of terms of service it agreed to with the platform, and it “conspired with ECF to improperly share login credentials” to access X’s secured database without authorization when defendants knew the contractual access limitations as they applied to ECF and Brandwatch, a data analytics platform, said the opposition.

In its opposition to ECF’s motion to dismiss, meanwhile, X said the “jurisdictional challenge” in the motion must fail based on “orders” that ECF placed with Brandwatch from 2021-2023. Previously unavailable to X, the orders show ECF “repeatedly agreed to” X’s terms of service requiring that all disputes between them related to the platform “must be heard exclusively in courts in San Francisco” and that ECF consented to personal jurisdiction, said the Friday opposition.

On ECF’s challenge to X’s claims, X's amended complaint’s “uncontroverted allegations are that ECF contracted with Brandwatch for access to non-public X Corp. data” stored on its servers in California, said the opposition. ECF could access the servers through login credentials Brandwatch provided, but ECF’s contracts with Brandwatch prohibited the defendant from doing so. In addition, Brandwatch’s contracts with X prohibited it from providing unauthorized access to licensed materials to third parties, said the filing.

“ECF intentionally reached into the U.S. to share its login credentials with CCDH US, to enable CCDH to gain unauthorized access" to licensed materials on protected U.S. servers, “mischaracterize that data, and use it to give the appearance of legitimacy to CCDH’s efforts to call for advertising bans on X,” it said.