Copyright Law

Brandjacking on Social Networks: Twitter, Malicious Ghost Writing, and Corporate Sabotage

By Andrew Moshirnia

It seems all I can write about these days is digital doppelgangers. I?ve written about employers engaged in Facebook hijacking and MySpace lurking. Today, a story of brandjacking through Twitter sabotage rounds out the cyber-possession trilogy.

Ghost writing on Twitter is nothing new.  When you tweet with 50 Cent or Britney, you are communicating with a publicist. This just seems to come with the territory of celebrity communication. Maybe that is why most people derided the story of Tony LaRussa? s suit against Twitter in reaction to a malicious ghost-tweeter.

I'm sure La Russa, who has since dropped his suit against Twitter, wishes he had never brought the matter to the attention of the mainstream media. La Russa's case was never very strong, as the TonyLarussa Twitter imposter had clearly stated that the account was a parody. Further, Section 230 of the Communications Decency Act of 1996 shielded Twitter, so several of * La Russa's claims were non-starters.

But now it seems, like so many other great pastimes, that Twitter impersonation has gone corporate.  In January, a Twitter account was set up for @TannerFriedman, a PR Firm based in Michigan. Problem was, the good folks at Tanner Friedman had no idea the account even existed. And when the PR-firm employees (experts at brand management) finally realized two months later that someone was posing as the firm and disseminating malicious tweets, they asked Twitter to take down the account.  Ultimately, Tanner Friedman sued the John Doe responsible for @TannerFriendman and subpoenaed Twitter for the copycat saboteur?s user information. The court expedited the request, and oddity of oddities, Tanner Friedman now controls @TannerFriedman.

Here?s where things get even more interesting. Though Doe registered his account through a disposable email address, he did not mask his IP address, 65.44.161.222. And who owns that address, according to Detriot News and registry records? Why, the rival PR-firm Marx Layne, where the eponymous Tanner and Friedman once worked.

This makes the whole story a lot less funny, no? Instead of a lone hacker reaping lulz, as was likely the case for Tony LaRussa, this now seems more like corporate espionage. TannerFriedman was not a parody account, it was outright trademark infringement. 

To be fair, Mike Layne, the managing partner of Marx Layne, has denied any involvement with the whole fiasco and has promised an internal investigation. So maybe it wasn?t an order from on high, but rather an over-zealous employee. (Note: I refuse to refer to this whole affair as Twittergate. Let's just agree that the use of the stale -gate enclitic needs to stop.)

So how long before Twitter becomes the next front in the brand wars (assuming that blight hasn?t already come to the shire)? What a great way to screw over your competition through disinformation (@KFC : Free Chicken Day- Free chicken dinner today at all participating stores!) and malicious statements (@Nike: Organizing the next Child Freedom to Labor Conference).  And you get the one-two punch of exposing your rival to further ridicule when they sue, ensuring that the story gets free media coverage, and the Internet hoards descend on a bullying corporation.

Twitter wants to avoid hosting an asymmetrical brand war, a logo-driven intifada. More importantly, Section 230 does not make Twitter immune to claims of trademark dilution/infringement. Posts on the Twitter Blog recently announced plans to institute a Verified Accounts program to confirm the identities of accounts for "public officials, public agencies, famous artists, athletes, and other well known individuals at risk of impersonation." (Funny, I don't see corporations anywhere on that list.) 

It remains to be seen how effective this program can be. I doubt that Verified Accounts will be enough to protect brands on Twitter. For one, the program is not open to corporations. Besides, based on the legion of examples of successful identity fraud and corporate mischief,  I'm willing to bet a determined user can beat Twitter's vetting proccess.

But who knows, maybe Twitter will succeed in fingerprinting new users. Till then, everyone on Twitter may be anyone. I?m off to the nearest Internet café to register @yalelaw.

(Andrew Moshirnia is a rising second-year law student at Harvard Law School and a CMLP legal intern. To the best of his knowledge, he does not have an account on Twitter.)

* This post originally stated that Section 230 would protect Twitter from all of La Russa's claims. However, Section 230 states that "[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property." Therefore, Section 230 would not bar La Russa's claims of trademark infringment, trademark dilution, and cybersquatting because they concern intellectual property. The court might also haved allowed La Russa's right of publicity claim. See Doe v. Friendfinder Network, Inc., 2008 WL 803947 (D.N.H. Mar. 27, 2008).

Full post as published by Citizen Media Law Project on July 15, 2009 (boomark / email).