• by Wendy Davis , Yesterday

A federal appeals court in California has lifted an order that prohibited Elon Musk from continuing to sue the watchdog Media Matters of America in Ireland over a report that ads from major brands appeared next to pro-Nazi posts on X, formerly Twitter.

Media Matters had argued that Ireland was the wrong locale for the suit because X's terms of service specified that all disputes would be handled in federal or state courts in San Francisco. But in an opinion issued Friday, a three-judge panel of the 9th Circuit Court of Appeals ruled that Media Matters waived that restriction by waiting too long to attempt to enforce it.

The ruling stems from a dispute over Media Matters' November 2023 report, which said ads for Apple, Bravo, IBM, Oracle and other brands were being placed next to extremist content on X.

Soon after the report was published, Musk's X sued Media Matters in federal court in Texas, and also sued abroad in Ireland and Singapore.

This March, Media Matters filed its own suit against X in federal court in the Northern District of California. The watchdog claimed that X violated its own terms of service by filing suit against Media Matters in other jurisdictions, and sought an injunction prohibiting X from continuing to litigate in Ireland and Singapore.

"X’s Terms of Service governing the conduct at issue in X’s lawsuits contain a mandatory forum selection clause requiring that 'All disputes related to these Terms or the Services will be brought solely in the federal or state courts located in San Francisco County, California, United States,'" Media Matters alleged in its complaint.

"None of the lawsuits X filed were filed in this county," the complaint continues. "Rather, X initiated a vendetta-driven campaign of libel tourism, spanning three jurisdictions in three countries."

U.S. District Court Judge Vince Chhabria partially sided with Media Matters. In April, he granted an injunction that prohibited X from continuing to litigate in Ireland, but not in Singapore, where X and Media Matters had already made substantive arguments to the court.

Chhabria noted in the opinion that Media Matters changed counsel before seeking the injunction, and that the group's original lawyers appeared to have "simply missed this issue."

The judge wrote that X's terms of service "makes clear that all these lawsuits should have been filed in California."

He added, "So for the Ireland case and any other potential cases in foreign jurisdictions, Media Matters shouldn’t be punished for its lawyers’ failure to raise the forum selection clause earlier."

X then appealed to the 9th Circuit, which lifted the injunction.

Media Matters "waived the right to exercise the forum selection clause in X’s terms by actively litigating the Ireland case for over a year without raising the forum selection clause in either Ireland or the Northern District of California," a three-judge panel wrote in an unsigned opinion.

"Media Matters had knowledge of X’s terms of service from the beginning of the Ireland litigation ... so it had all the information it needed to defend its rights," the judges wrote. "Yet instead of invoking the forum selection clause, Media Matters litigated in Ireland for over a year before it raised the issue for the first time."