Parody accounts on Facebook and Instagram: a no-go zone?

Our latest posts on the Adam Gilchrist parody Twitter account saga (see here and here) have generated such interest that we thought we’d do a little more digging. Could ‘Fake Gilly’, for instance, replicate his parody account on either Facebook or Instagram?

The short answer is: ‘No’. While Twitter expressly allows the creation of parody accounts in accordance with its Parody Account Guidelines, both Facebook and Instagram prohibit them. According to each site’s terms and conditions, a user is not allowed to create an account for anyone other than themselves without permission (see Facebook terms here and Instagram terms here). Facebook and Instagram expressly reserve the right to remove such an account, and users can report imposter accounts (see the Facebook mechanism here and the Instagram mechanism here). Given that Facebook acquired Instagram for approximately $1 billion in 2012, the corresponding stance of these platforms does not surprise.

That said, Facebook does allow a user to create a “Page” to express support for, or interest in, a brand, entity, or public figure, provided that Page is not likely to be confused with an “official” Page or “violate someone’s rights”.

So, what rights could come into play? As we’ve noted previously in relation to the parody Gilchrist Twitter account, the most likely causes of action in Australia are for:

  • defamation (if an imposter started posting statements that affected the real person’s reputation);
  • trade mark infringement (for example, where a person has a registered trade mark in his or her name, or in a personal slogan); or for
  • misleading or deceptive conduct under the Australian Consumer Law.

However, actions for both trade mark infringement and misleading or deceptive conduct require that conduct be “in the course of trade” which might be hard to establish in relation to the creation of a Page that merely expresses support or interest. Similarly, whilst people in the United States enjoy “personality rights”, we understand this protection only relates to the commercialisation of an individual’s use of their name, image, likeness and identity.

How can I let the world know which account is the real me?

An option for users concerned about being impersonated on social media sites is to attempt to get their own account verified.

Twitter was the first to implement verification procedures in 2009. When an account has been verified by Twitter, a “blue tick” will appear after the user’s name on their profile and in search results for them on Twitter. While Twitter does not accept requests for verification from the general public, Twitter proactively verifies accounts of users deemed to be at high risk of impersonation (in industries such as music, acting, fashion, government, journalism, media etc). For example, see the Twitter account of Nathan Buckley, legendary former Collingwood footballer and current coach of Collingwood (we’re not biased at all). The small blue tick after his name on his profile and in search results is meant to show that this account is the real deal.

Facebook introduced a verification procedure for users in February 2012 and for Pages in May 2013. Facebook verifies users by inviting the user to submit government-issued photo ID or two alternate forms of ID. No logos are placed on the verified account, but verified users are able to replace their real

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name with a nickname and they will also appear more frequently in the “people to subscribe to” sidebar on the Facebook newsfeed. Verified Pages do have a logo (a small blue tick) placed after the Page name on the profile – and these Pages are easier to find.

While this procedure originally was intended to be an extra service provided to high profile users, Facebook and Instagram have also proactively started to request photo ID validation from some users “in response to suspected violations” of their terms of service. Reports suggest the push towards secure accounts is because Facebook and Instagram want to enforce user age restrictions (users must be at least 13 to use both platforms).

Sometimes the platforms get it wrong. In January 2012, Twitter mistakenly conferred blue tick status on an account for @Wendi_Deng (businesswoman and Rupert Murdoch’s ex-wife). The account was registered under the name Wendi Deng Murdoch and following verification, amassed 10,000 followers eager for a slice of the Murdoch’s private life. Even the anonymous blogger behind the account expressed his/her alarm at being verified as the real Wendi Deng, and suggested that Twitter should be checking out its verified status more carefully.

Verification procedures only work effectively if the individual in question has their own account on the social media platform to begin with. So, let’s turn to the case of Adam Gilchrist. We assume that he would have met Twitter’s ‘celebrity’ categorisation entitling him to verification. Because he did not have his own account on Twitter before ‘Fake Gilly’ popped up, there was no way to distinguish between real and fake Gilly, beyond what ‘Fake Gilly’ decided to voluntarily include in his profile. Additionally, in order to report the imposter account, the real Adam Gilchrist would have been forced to sign up to Twitter, as Twitter only allows such reports from existing users.

[Note: Instagram is the same; however Facebook allows non-users to report an imposter account.]

Sometimes, social media can seem like a bit of a minefield for users to navigate safely. It’s important to remember that the sites do have extensive terms of use that exist in part for the protection of users, and that reporting processes are available to address violations.

About the Author

Daniella Phair
Daniella's heart belongs to anything IP related. From cloud computing to fashion trade marks to online advertising, Daniella’s IP interests are broad and varied. Whether her IP Whiteboard posts involve trawling Perez Hilton’s gossip websites or reading an ALRC report, Daniella is up for a challenge. She most enjoys the fact that her interests in IP are becoming increasingly intertwined with her entrenched addiction to all things social media and loves being able to legitimately spend 6 hours on Facebook a day at work…
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