One interesting phenomenon on Twitter is the emergence of fake accounts, where someone pretends to tweet as a celebrity or political figure, usually to make fun of that celebirty or political figure. Most fake Twitter accounts disclose that fact upright, either by including "fake" in their Twitter username or using some comic variation of the name of the celebrity or political figure. Others use the individual's own name, and are far more subtle.
Andrew Bolt discovered today that someone has been pretending to tweet as him @andrewbolt since 11 Feburary 2009. (I'm not sure why it take Andrew Bolt so long to be aware of this account.) Understandably Bolt is not impressed:
So which organisation is implicated in this dishonesty?
It shouldn’t need saying, but I do not have a Twitter account and the fake one seems to be the work of people whose employer will be very embarrassed to find its staff once more engaging in deceitful slurs. A little warning there. A tearful sorry afterwards will be both too late and insincere, especially from people with their record of sliming.
Some people share Bolt's outrages, even suggesting that he should report the account to the police for identity theft, and that he should sue for deceptive and misleading conduct (neither of which have any merit, as I'll explain in a moment). Others think it is a big joke and see Bolt as a fair target who should get over himself.
To begin with, I can understand why Andrew Bolt is upset by this account. Although it hasn't that hard to figure out it is a fake account and not the real Andrew Bolt, I must admit that when I first saw a tweet from Andrew Bolt a year or so ago, I thought it was from the real Andrew Bolt. It is also a likely breach of Twitter's Terms of Service, which incorporates Twitter's Rules, which in turn states:
Impersonation: You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others
However, these Rules need to be read with Twitter's Parody, Commentary, and Fan Accounts Policy, which gives some guidance as to what will considered to be "in a manner that does or is intended to mislead, confuse, or deceive others":
In order to avoid impersonation, an account's profile information should make it clear that the creator of the account is not actually the same person or entity as the subject of the parody/commentary. Here are some suggestions for marking your account:
- Username: The username should not be the exact name of the subject of the parody, commentary, or fandom; to make it clearer, you should distinguish the account with a qualifier such as "not," "fake," or "fan."
- Name: The profile name should not list the exact name of the subject without some other distinguishing word, such as "not," "fake," or "fan."
- Bio: The bio should include a statement to distinguish it from the real identity, such as "This is a parody," "This is a fan page," "Parody Account," "Fan Account," or "This is not affiliated with…"
- Communication with other users: The account should not, through private or public communication with other users, try to deceive or mislead others about your identity. For example, if operating a fan account, do not direct message other users implying you are the actual subject (i.e., person, band, sports team, etc.) of the fan account.
If an account is engaged in parody and follows all of the above recommendations, it will generally be free to continue in its parody so long as it doesn't mislead or deceive others. These are considered best practices for clearly marking accounts as one that is engaging in non-impersonation parody/commentary. Users may also choose to use different language to indicate that an account is a parody, commentary, or fan account so long as it is clear. However, if an account is found to be deceptive or misleading, we may request that the user make further changes to bring the account more in line with these best practices. Accounts with a clear intent to deceive may be permanently suspended.
Notwithstanding the fact that close examination of the fake @andrewbolt Twitter account will result in most people concluding that it is indeed a fake, Twitter would be entitled to ask the user to amend the username to make it clear it is a fake or parody account, as well as requiring a statement in the bio to additionally make it abundantly clear. That, to me, would seem not only to be a fair and reasonable course of action for Twitter to take, but one they are able to do so under their Terms of Services, Rules and Policies. It is also likely that if the fake @andrewbolt voluntarily made such a change, he or she would then be complying with Twitter's Terms of Services, Rules and Policies.
There is, however, another issue; namely, whether Bolt might have any legal options open to him. Contrary to some suggestions that have circulated today, he would not be able to sue for the tort of passing off, as this Twitter account does not constitute a representation in the course of trade by one trader which damages the goodwill of another trader. Further, he will not be able to sue for deceptive and misleading conduct under the Trade Practices Act 1974 (Cth), as this fake Twitter account was not done in "trade or commerce". There is also no criminal offence that has been committed here, as fraud or identity theft requires economic loss.
That is not to say that Bolt may not have a cause of action for defamation. Bolt would need to establish that one or more of the tweets from the fake @andrewbolt was a communication:
- of a defamatory matter;
- that was referrable to the plaintiff; and
- was published.
An imputation will be considered defamatory if it
- exposed the plaintiff to hate, contempt or ridicule (see Ettingshausen v Australian Consolidated Press (1991) 23 NSW LR 443);
- tended to make the plaintiff shunned or avoided (Morgan v Lingen (1863) 8 LT 800);
- tended to lower the plaintiff in the estimation of others (Sim v Stretch (1936) 52 TLR 669).
Using one or more of these definitions, it seems to me that Bolt would at least have an arguable case, that one or more of the tweets constituted a defamatory imputation. Moreoever, they were referrable to Bolt and published. It is also worth noting that cartoons, caricatures, jokes or satire may be defamatory depending upon the context of the publication (see Entienne v Festival City Broadcasters (2001) 79 SASR 19). How a jury would construe these statements, given they take place in the context of a fake Twitter account, is hard to predict. Nonetheless, I do believe that a judge would find that the material is capable of defaming Bolt and that it would then be up to a jury to decide whether the material actually defamed Bolt.
So while I think it is highly unlikely Bolt would actually sue for defamation, it is worth remembering that even fake Twitter accounts, while intended for the purpose of satire and humour, may well have legal consequences.
