Twitter And AmEx Team Up: Legal Questions Abound

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twitteramexBy IT-Lex Intern Eric Everson (Twitter)

American Express (AmEx) has teamed with Twitter to push social media eCommerce into new ePayment territory.  While a convenient ePayment solution may be underlying somewhere within this technology, the potential legal issues seem abundant from the forefront.

First things first, let’s explore exactly what this whole AmEx-Twitter thing is all about.  For about a year now, AmEx has been partnered with Twitter and has established the American Express Sync platform.  This platform established a Groupon-like deals notification with heavily-promoted #hashtags (ie #AmexCelticsOffer) for special deals. Now, they have taken the next step as they turn Twitter #hashtags into purchases for American Express cardmembers who sync their eligible cards.  This evolution is aimed at creating a new revenue stream for Twitter that moves beyond the advertising-focused deal notification service.

Next, let’s explore a few of the potential issues…

Did I just make a purchase or post a Tweet? If you use the magic language of an AmEx #hashtag, and you happen to hold one of the eligible AmEx cards, it seems you’ve already initiated a transaction!  In a legal contract analysis, it would seem that something like today’s #hashtag (#BuyAmexGiftCard25) could at minimum be treated as an invitation to treat or a solicitation.  Because AmEx will send you a confirmation before entering you into a binding agreement to purchase, the “meeting of the minds” required to form the actual agreement hinges on your second response.  What about these ambiguities though?  Simply because one stumbles upon or simply mentions a #hashtag should they be thrust into a situation where their next response satisfies a binding agreement?

What about international contract laws?  I’m admittedly writing this piece from the comfort of my Florida office, but I cannot help but wonder what unsuspecting international contract laws AmEx is about to cross into.  Just for fun, let’s say a Twitter user is registered (with an eligible card of course) with a billing address from the United Arab Emirates, but decided to post the AmEx #hashtag while on holiday in Nepal.  The entire transaction occurs in Nepal, so what law will apply in the event the purchase is disputed?  With each global transaction will the foreign cardholders be able to prevail under forum non conveniens and subject AmEx to the complex world of International litigation?  I don’t know if anyone else is as excited about the added complexities of International eDiscovery in a completely electronic transaction as I am!

What about International privacy laws and the TweetDeck?  If you’re not familiar with the term TweetDeck, that’s okay, essentially it’s a personal browser platform by Twitter that allows users to keep a tab on what’s happening with their contacts across Twitter, Facebook, MySpace, etc.  In essence with the added ability to couple a #Discover search, you can see every AmEx purchase that every Twitter user initiates regardless of where they live in the world.  Does anyone else see the red flag of litigation facing AmEx with regard to international online privacy laws?

Dude, my Twitter got hacked… Let’s face it, Facebook does a much better job of insuring that the user is who the user says they are than Twitter.  The safeguards are minimal as apparently anyone on Twitter can call themselves “Donald Trump”.  Despite the safeguards, even Facebook accounts get hacked on a regular basis, which means that the veil of protection for Twitter is that much thinner.  Now that a simple #hashtag can be a tool for making purchases, any AmEx user with an eligible card and a Twitter account faces a whole new risk!

Okay, that’s enough for now, but the point is there are some real issues here that I at least hope the legal team at AmEx has vetted.  The truth is despite some of these hairy legal issues, I’m excited to see the diversification and new uses emerging for Twitter.  With any luck, in the not too distant future I should be able to #hashtag tweet a pizza order and expect a timely delivery.

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