In May, St. Louis Cardinals manager Tony La Russa filed suit against Twitter in California Superior Court, essentially claiming that someone using his name was posting comments that damaged his reputation and caused emotional distress. The suit also claims damage to La Russa’s trademark rights.
Ordinarily, I would have thought little about the case, believing it would get thrown out due to the legal precedent that says those who provide such services are not liable for the content that gets posted on them.
But there are two angles worth considering here. One is called the “right to publicity,” and the other is the evolving notion of digital identity.
The right to publicity is not a federal law, but many states do have it on their books, including California. The California law states:
Right of Publicity — California Civil Code Section 3344:
Use of Another’s Name, Voice, Signature, Photograph, or Likeness in Advertising or Soliciting Without Prior Consent.
(a) Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney’s fees and costs.
Skipping down to paragraph (f):
(f) Nothing in this section shall apply to the owners or employees of any medium used for advertising, including, but not limited to, newspapers, magazines, radio and television networks and stations, cable television systems, billboards, and transit ads, by whom any advertisement or solicitation in violation of this section is published or disseminated, unless it is established that such owners or employees had knowledge of the unauthorized use of the person’s name, voice, signature, photograph, or likeness as prohibited by this section.
Now, whereas the Twitter postings (“tweets”) were not commercial in nature, two points remain:
- One can claim damage to one’s right to publicity through usurpation of identity and subsequent abuse.
- Supposedly, Twitter was contacted repeatedly about removing the offending Twitter account but did nothing before the suit was filed. (The account is now gone.) Therefore, the owners of Twitter did have knowledge of the unauthorized use of La Russa’s name.
So, Twitter may not be liable for the content of an user’s posting per se, but it could be liable if the user is impersonating someone else and making comments objectionable or damaging to that real person.
And if Twitter was notified about the impersonation and took no action, they are on the hook. The tweets were, in fact, very offensive, which could be seen as damaging Tony La Russa’s reputation and right to publicity.
Whither Digital Identity?
Can anyone claim to be someone else on the internet? Yes. Anonymity works both ways. Will Twitter develop some user identity authorization mechanism? It’s already underway.
This is not only important to avoid liability issues relating to content, but also in the arena of financial transactions. Twitter is working on a payment system, and without some form of user authentication, such a system would be unworkable. Hopefully, such an authorization will serve to address financial and content liabilities at the same time.
What is interesting to me is how far this will go: Twitter as a payment and identity gateway? Blecch.
It raises the red flag of digital identity squatting. At the moment, anyone can use your name as a Twitter username (with all due sympathies to all the John Smiths out there).
By no strange coincidence, Facebook is also looking at a payment system. In addition, as of midnight June 12, users were able to create a more human-friendly link to their pages or profiles using their name. For example, if you are Zoogle McFillibuster, you can now be identitifed on Facebook by www.facebook.com/zoogle.mcfillibuster
It appears that each social networking service is establishing the framework for payment systems, and therefore, user authentication systems. It’s the threat of digital identity squatting — either for gain or for annoyance — that is the next tempest on the internet radar screen. So, whether or not the La Russa law suit goes anywhere, at least it uncovered the issue of digital identity squatting.