beyond parodyPosted on
On the backpage of yesterday’s Mirror appeared a surprising story (via Badgerous1). Under the headline “Rio in dig at Chelsea” the newspaper reported that Rio Ferdinand had mocked Chelsea in a Tweet, saying “So Chelsea have signed Oscar – the only trophy they’ll get this season!” Except Ferdinand didn’t Tweet that at all. His Twitter account is @rioferdy5, the account which sent the Tweet was @RlOFERDY5.
Can you spot the difference? The second letter on the second account is a small “L” – confusing in Helvetica Neue font. What shouldn’t have been confusing for the Mirror though was the fact that the account’s biog says as follows: “unOfficial Twitter Parody Account of Rio Ferdinand”. The lack of a Verified tick on the account should also have given the game away.
It’s disconcerting that newspapers are exercising such a limited level of care in reporting events on Twitter. The MailOnline (despite Martin Clarke’s denials) have fallen victim in the past to such fake accounts (Katie Price with two “i’s”) as referred to in a previous blog.
I doubt Ferdinand will lose too much sleep over the Mirror’s misreporting, however, fake accounts can often be much more sinister and damaging to the person being impersonated.
Twitter’s rules (and similar rules on other social networking sites) provide that clear attempts to impersonate are not allowed, however, parody accounts are allowed. It would seem that @RlOFERDY5’s use of the word parody in the biog is nothing more than an attempt to stay within Twitter’s rules. There is nothing parodying about the account. The account uses the well-recognised @rioferdy5 photograph and, to the ordinary Twitter user in a hurry, it is very easy to make the mistake of believing that Rio Ferdinand had sent the Tweet (this is not an excuse for a national newspaper of course). The words of the Advertising Standards Authority in the recent Nike Twitter ads adjudication bears repetition: “the average Twitter user … would receive a number of tweets throughout the day, which they may scroll through quickly” . It seems that @RlOFERDY5 set out to impersonate Rio Ferdinand and has succeeded in confusing average Twitter users … and a national newspaper.
Twitter’s rules state “In order to be impersonation, they must also pretend to be another person in order to mislead or deceive”. @RlOFERDY5 does this. Whether Twitter would take action if Ferdinand complained would be interesting. Rio would have a strong argument to require, at least, the removal of his photograph from the account. @RlOFERDY5, on the other hand, would no doubt rely on this part of the Twitter rules “An account will not be removed if … the profile clearly states it is not affiliated with or connected to any similarly-named individuals”.
Impersonation, parody and the law
Satire is not, and never should be, unlawful. That is why Twitter’s parody rules are sensible, provided they are pragmatically applied. @CherylKerl, for example, may not be funny but it doesn’t set out to confuse anyone and is intended only as satire or parody.
But is it unlawful to impersonate someone?
At it’s most serious impersonating an individual can constitute criminal fraud, however, the more common offence is the impersonator who seeks reflected glory by setting up an impersonation account on social media or seeks to steer away goodwill in a brand or reputation by setting up cyber squatting websites, social media accounts or even (as has happened with clients of mine) fake webmail addresses and online profiles.
Even if Twitter were not willing to intervene in the @RlOFERDY5 example the impersonator has clearly breached the copyright in Ferdinand’s photograph (or whoever owns the copyright of the image, which could be easily transferred to Ferdinand). Using the photograph to impersonate Ferdinand online is hardly incidental use.
The legal protection that most comfortably fits into the characteristics of an impersonation account, email address or website is the law of passing off. In the 1990 “Jif lemon case” of Reckitt & Colman Products v Borden Inc Lord Oliver summarised the 3 stage test and it is helpful to use the @RlOFERDY5 facts alongside the test.
“First, [the Claimant] must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the identifying “get-up””
@rioferdy5 is a pivotal part of Rio Ferdinand’s brand. His handle appears on his boots and the profile picture he uses is recognisable to fans of Manchester United, football and the wider general public. Establishing that an international footballer has a goodwill and reputation in his own name and image is not problematic.
“Secondly, he must demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by him are the goods or services of the plaintiff”.
Not only is the Daily Mirror’s backpage error evidence of how even supposedly sophisticated Twitter users were deceived a look at the ReTweets, conversations and mentions of @RlOFERDY5 show that a significant number of Twitter users were confused also.
“Thirdly, he must demonstrate that he suffers or … that he is likely to suffer damage by reason of the erroneous belief engendered by the defendant’s misrepresentation that the source of the defendant’s goods or services is the same as the source of those offered by the plaintiff”.
A look at @RlOFERDY5’s Tweets would suggest that @rioferdy5’s reputation may already have been damaged in the eyes of any individual viewing the account or its Tweets with any mistaken belief that the account belonged to Ferdinand. What is easier to establish, however, is that Ferdinand is “likely to suffer damage”. Ferdinand, and his use of Twitter, has been under public and press scrutiny in recent weeks. Given the ease at which @RlOFERDY5 embarrassed a national newspaper the chances of the account causing Ferdinand real reputational damage are high.
Of course, if @RlOFERDY5 decides to make statements, in Ferdinand’s name, then the user also risks a libel suit from Ferdinand. One which would not be easy to defend.
Unmasking the impersonators
Blogging, and therefore microblogging on Twitter, is regarded at law as public activity. In the Nightjack case (which later gained notoriety when it transpired that the Times journalist hacked the blogger’s email account in order to identify him) Mr Justice Eady held that a serving police officer who was blogging anonymously did not have a reasonable expectation of privacy to protect his anonymity. Blogging is public activity.
When taking part in public activity one must act within the boundaries of the law. If you do not then you may be on the receiving end of an unmasking order – known as a Norwich Pharmacal order in England and Wales. It appears that California is no different. Account details were handed over to an alleged libel victim last year by Twitter and now senior Daily Mail and General Trust executive Steve Auckland appears to have obtained a similar order for Twitter to reveal identifying information about the operator of the @UnSteveDorkland account (a clear parody even from the @ handle).
Auckland’s case begs an immediate question about the hypocrisy of the Daily Mail and General Trust making such an application in the face of its own position on the “chilling effect” of media laws on freedom of expression. In the Daily Mail’s own editorial on the subject the newspaper has said “isn’t the truth — apparent to everyone but judges and fee-hungry law firms — that technology has made a constitutional debate all but irrelevant? … gagging orders [on Twitter users] are undesirable and profoundly against the public interest”.
The @UnSteveDorkland application looks, from an outsider’s point of view, like a very curious use of an unmasking order, however, the writer is not in possession of all the facts. If @UnSteveDorkland has not breached any law in his Tweets then he has nothing to fear, legally. It would appear that the motivatation at DMGT is to find out if he/she is an employee, which may bring in certain contractual and confidentiality breaches.
What this recent case does tell us is that, if you are going to blog, microblog or set up websites or online accounts, then ensure that you act lawfully. If you do not, then the muddy footprint you leave behind may well lead a trail back to your doorstep.