Celebrity Impersonation and Section 230
Thursday, June 25, 2009 at 06:30 PM EDT
Cyberprof Michael Risch has posted some interesting thoughts on the emerging complexity of Section 230. Weâ€™ve talked about this provision on the blog many times before. And Mark Lemley wrote a good paper on it a while back. The provision pretty much immunizes web sites and other internet providers from liability for a host of legal infractions arising from user-generated content, including defamation and invasion of privacy. While some cases are pretty simple, now we are seeing more complex situations arising.
Among the newest is the recent lawsuit filed by St. Louis Cardinals manager Tony LaRussa against Twitter. A user who claimed to be LaRussa opened a Twitter account in his name and said some nasty things, including mocking references to the deaths of two Cardinals pitchers. Twitter denied initial reports that the suit had been settled in a somewhat bellicose blog post (remember, lawyers: it isnâ€™t a settlement until the other guyâ€™s client signs off). Twitter then removed the case (that is, transferred it) from state to federal court, where it currently remains active on the docket of the Northern District of California. (The best news coverage is here and here.) The phony LaRussa account was terminated long ago; impersonation violates Twitterâ€™s terms of service.
LaRussaâ€™s actual grievances sound like they should give rise to defamation or false light, or perhaps the appropriation tort. But these would all be blocked, quite routinely, by section 230. Of course, LaRussa could go after the individual impostor, assuming that person could be found. Instead, his lawyers framed much of his complaint in terms of trademark infringement. Why? Itâ€™s no coincidence that section 230(d) carves out IP (along with criminal law) from the special immunity, stating, â€œNothing in this section shall be construed to limit or expand any law pertaining to intellectual property.â€
But to prevail on the trademark infringement claim, LaRussa has to prove
that the phony account was likely to confuse consumers into thinking he
endorsed Twitter, thus harming him. That is why his complaint emphasizes:
In this particular case, proving confusion and harm will be very difficult, since (1) the account only had four followers; (2) it included a notation in the userâ€™s profile section, â€œBio Parodies are fun for everyone;â€ (3) itâ€™s not clear a statement (even a false one) that LaRussa used the service can fairly be called an endorsement of the service (though the â€œendorsementâ€ concept can be slippery, as I have written elsewhere). Trademark dilution does not require confusion or monetary harm, but LaRussa pleaded under federal dilution law, which allows only injunctive relief â€” now moot since the profile is gone â€” and completely exempts â€œnoncommercial useâ€ of a trademark.
More generally, however, this case highlights the possibility of a loophole for celebrities who can recast privacy-like claims under trademark law (and possibly also rights of publicity, if those are interpreted as intellectual property under the language of section 230(d)). Where would that leave us? Well, it shows (again) that the apparently bright lines of section 230 sometimes arenâ€™t. But it might also create what Iâ€™d consider a pernicious double standard: celebrities maligned by anonymous online impostors could plead around section 230 by claiming trademark or publicity rights in their name, while many ordinary people victimized by defamation or cyber-bullying would have their claims blocked. Other law, defamation in particular, expects celebrities to have thicker skin and tolerates more insensitive speech about them. If LaRussa pulled off this suicide squeeze, that sensible dichotomy might get turned on its head.
This article originally appeared on Info/Law.