‘Weaponised’ litigation: Industry stands ground against X following GARM shutdown
“No serious brand advertiser in their right mind will return to advertising on X under its current leadership.”
Ruben Schreurs, chief strategy officer at media and marketing consultancy Ebiquity, did not mince his words in reaction to the Global Alliance for Responsible Media (GARM) being forced to shut down over legal action taken by X.
“Litigation should not be allowed to be weaponised in a way where organisations can be hamstrung by overwhelming and unwarranted legal pressures from better-funded plaintiffs. It sets a dangerous precedent in general, but now specifically in the advertising industry.”
Filed this week and dramatically announced by X CEO Linda Yaccarino, the lawsuit alleged that GARM and the World Federation of Advertisers (WFA) had illegally conspired to boycott the platform.
The case was widely seen as frivolous and lacking standing, given advertisers are free to choose where to advertise in an open market. Some critics suggested that it was an example of a SLAPP suit, or strategic litigation against public participation. Such lawsuits are intended to censor critics by overburdening them with the cost of legal defence.
Indeed, GARM — a not-for-profit organisation — announced it would be shutting down due to the fact that it would be unable to afford the legal costs associated with fighting the suit.
Cass Naylor, co-director of advocacy at Outvertising and strategic advisor at Purpose Union, told The Media Leader: “This SLAPP-like behaviour is highly unethical and does nothing to rebuild the sullied reputation of Twitter/X with the advertising community.”
Not an ‘illegal conspiracy’
GARM was founded in 2019 in the wake of the Christchurch mosque shootings in New Zealand to address advertisers’ role in digital safety. In the five years since, GARM worked to enhance transparency of ad placements on social media and provided brand safety and environmental sustainability tools to advertisers.
“Brands are free to decide where to invest their advertising budgets, based on the parameters that matter to their organisation,” said Schreurs. “Similarly, organisations are free to create frameworks to classify advertising inventory as they see fit. It is up to brand advertisers and their agencies to decide where to advertise and where not to advertise.
“We live in a sad reality when brands deciding to avoid having their ads appear next to, for example, racial slurs is seen as an ‘illegal conspiracy’ against a platform that explicitly decides not to moderate the content of their users. But here we are.”
Schreurs argued that independent trade bodies, including the WFA, are “among the very few places where common definitions around key industry issues can be discussed in a safe and legal environment” and the result of X’s lawsuit is that they will “be impacted significantly in their ability to drive progress”.
Fake news has consequences for individuals, society and democracy
UK trade body reactions
Phil Smith, director-general at Isba, the UK advertiser body that is part of the WFA, attempted to reassure members in reaction to the news of GARM’s closure.
“The difficult decision made by the WFA to discontinue GARM does not affect Isba’s commitment to user and brand safety online,” he shared in a statement to The Media Leader. “We have been consistent in our strong support for platform safety and for a brand-safe environment, where our members’ advertising does not appear next to unacceptable or harmful content.
“Isba has also been consistently clear that every advertiser must make their own individual decisions on advertising investment — and every advertiser has the right to spend where it sees fit.”
Paul Bainsfair, director-general of the IPA, added: “We are disappointed to hear that GARM is being discontinued. GARM served an important role in tackling illegal or harmful content online, raising standards across the board in the process.
“Illegal and harmful content on digital media platforms remains a significant challenge for our industry and one that will require cross-industry collaboration to solve.”
Incoherent strategy
Musk has taken an inconsistent and often outrageous strategy to handling his relationship with advertisers since he purchased X, then known as Twitter, in 2022.
The vast majority of Twitter’s revenue historically came from advertising, but Musk’s decision to gut the trust and safety teams left the company unable to moderate hateful speech and disinformation, spooking advertisers whose ads began appearing next to unseemly content.
Musk responded to advertisers fleeing the site by telling them to “go fuck yourself” in a contentious interview in November 2023 and doubled down on his statement at this year’s Cannes Lions, albeit with more tepid diction, during a controversial interview with WPP CEO Mark Read.
“First of all, it wasn’t to advertisers as a whole. It was with respect to freedom of speech,” Musk told Read in reference to his earlier comment. “It is important to have a global, free-speech platform where people with a wide range of opinions can voice their views. In some cases, there were advertisers who were insisting on censorship.
“At the end of the day, if we have to make a choice between censorship and money, or free speech and losing money, we’re going to support free speech. Which is, I think, the right moral decision.”
In July, X rejoined GARM in an attempt to placate advertisers.
Spreading misinformation
X’s lawsuit against GARM and the WFA came as Musk contributed to the spread of misinformation on his platform that has incited violence across the UK.
Following an outburst of violence in numerous cities, sparked by misinformation over the racial identity of the Southport attacker, Musk stated that “civil war was inevitable” in the UK amid anti-immigrant furore.
Prime minister Sir Keir Starmer responded by saying there was “no justification” for Musk’s comments, adding: “To anybody involved, either directly or online, you’re likely to be dealt with within a week.”
Home secretary Yvette Cooper further called social media companies a “rocket booster” that fuelled the unrest. And while other platforms such as Meta and TikTok are also implicated, unlike X they have moved to take down dangerous disinformation and hateful speech over the past week.
“This week, the human rights of millions of Britons have been impacted by violent riots stirred up by hate and misinformation. Not to mention the lost productivity for British businesses,” Harriet Kingaby, co-chair of the Conscious Advertising Network, told The Media Leader.
“Hate is bad for business and society. It is these direct impacts of exposure to harmful content that we need to take action on. Advertisers do not want to appear next to this kind of content and their commercial freedom not to do so should be respected.
“This is not going to go away and neither will the principles laid out by GARM.”
‘Irresponsible conduct’
Most recently, Musk, who has openly supported fringe far-right groups and endorsed Donald Trump for president in the US, posted (and later deleted) a fake headline purporting to be from The Telegraph that said Starmer is “considering building ’emergency detainment camps’ on the Falkland Islands” to detain far-right rioters arrested this past week.
Musk also has a history of making antisemitic and anti-LGBTQ+ comments, including about his own daughter, who has disavowed him.
“It is patently ridiculous to assert that Twitter/X has a legal right not to be boycotted for its editorial practices or that free actors in a free market may not express their disdain and frustration for a platform where restrictions are applied to the term ‘cisgender’ and not to the worst racist, ableist and queer-phobic slurs,” said Naylor.
“This is not to mention the utterly irresponsible conduct of Elon Musk himself on the platform, including his shameful promulgating of anti-immigrant disinformation during a national crisis in the UK.
“Musk and Yaccarino cannot simply declare that Twitter/X is ‘the internet’s town square’ and act as if that gives them special legal or cultural status. It is a trust that must be earned and they have a lot of work to do to earn that trust back.”
Continuing conflict
Apart from stirring civil unrest, by suing the WFA and GARM, Musk further ratcheted up the conflict with advertisers.
“We tried peace for two years; now it is war,” Musk said following the announcement of the lawsuit.
If it is war, advertisers appear happy to continue moving elsewhere, especially as the site is not only unsafe for brands, but also fails to provide sufficient return on investment relative to competitors.
“Advertisers are more bemused than angered and none of this gives advertisers a good reason to go back to X or not to leave it,” Eb Adeyeri, vice-president, paid social and partnerships, at Brandtech Group agency Jellyfish, told The Media Leader.
“Even if we were to set aside the brand safety concerns (which are very top of mind in a febrile political environment), X is still to prove the performance metrics are comparable to what a lot of advertisers are after.
“This comes at a time when the likes of TikTok, Snap, Reddit, Pinterest are all competing for the incremental spend that isn’t being taken up by Meta.”
Indeed, for many advertisers, Twitter never played a significant role in their media plans, even when the site had more sufficient content moderation practices, because it has always lacked effectiveness relative to its competitors.
Why Twitter has never played a significant role in our media plans
Tread carefully
On that basis, as well as from a moral standpoint, Mike Follett, managing director of attention measurement company Lumen Research, questioned why any advertiser would continue spending on X.
“Tell me: why do free people, who have the liberty to spend their money as they wish, choose to invest in X?” he asked in a post on LinkedIn. “And why does anyone trust the judgement of Elon Musk, who was today caught spreading fake news about Britain’s treatment of racist rioters?”
Still, one head of media at a major UK brand told The Media Leader that advertisers should wade carefully into conflict with media owners, as they no longer have as much power to influence the conversation with their ad dollars as they once did.
“For all marketers, advertising responsibly should be one’s top priority, but I don’t agree with the aggressive approach that GARM and the WFA took,” they said. “The balance of power has changed from a world where the larger advertisers could demand action based on their perceived power and advertisers now need to work with, not against, media owners — particularly the massive multi-market platforms.”
On the other hand, according to EssenceMediacomX chief strategy officer David Wilding, brands should use this opportunity to reconsider their own brand safety practices and consider moving spend towards more trustworthy news brands.
As he wrote on LinkedIn: “If your brand safety policy means you can invest quite happily in platforms where misinformation is rife but NOT in the journalism that seeks to dissect that misinformation (and report on the unrest in our streets it creates), ‘because we need to avoid news’, then your brand safety policy probably needs reviewing.”