St. Louis Cardinals manager Tony La Russa is suing Twitter over an unauthorized page that used his name and gave the false impression that he was sending embarrassing messages. The litigation in Superior Court of California in San Francisco is only the latest of such lawsuits against such companies for failing to confirm and monitor such sites.
LaRussa, 64, alleges that the unauthorized “tweets” have caused him emotional distress and is seeking unspecified damages. The account is no longer active.
It is pretty clear that the account holder was hijacking the identity of LaRussa with statements such as “Hey there! Tony La Russa is using Twitter,” with a picture of the manager. The complaint below states:
The Site states in large lettering, “Iony LaRussa is using Twitter”, and encourages users to “Join today to start receiving Tony LaRussa’s update.” It also contains a picture of Plaintiff with his name printed next to it. Beneath the picture, the Site contains written entries that are impliedly written by Plaintiff himself vhen in fact they are not. The entries are derogatory and demeaning and are damaging to plaintifps trademark rights.
What is interesting is a brief statement that reads, “Bio Parodies are fun for everyone.” If the account holder is found, it could make for an interesting case where he or she claims that the site was parody — a generally protected form of speech. However, parodies are only funny (and protected) to the extent that they are not confused with the real person. Thus, in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), the Supreme Court held that a page on the late Rev. Jerry Falwell was clearly parody and protected despite the juvenile and disgusting content of the piece. The Court (both conservatives and liberals) found that such speech must be protected:
“At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. The freedom to speak one’s mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.”
Generally, internet sites have been given immunity under the Communications Decency Act, which has been used repeatedly by Web providers to bar liability. Yet, this does not prevent lawsuits that sue John Does and seek discovery from the sites to determine the identity of anonymous posters. There have been a slew of lawsuits over such postings, here and here and here.
These cases highlight the protection given to Internet companies like Craigslist and Facebook from defamation lawsuits. Under a federal law and the ruling in Zeran. The Communications Decency Act. Section 230 of the 1996 Act gives protections to online service providers from being sued for the actions of others. That section states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
Kenneth Zeran sued America Online for negligence. On April 25, 1995, an unidentified person posted a message on an AOL bulletin board advertising “Naughty Oklahoma T-shirts.” It was a prank that featured offensive products about the Oklahoma bombing and told interested buyers to call “Ken” at Zeran’s home phone number in Seattle. Zeran notified AOL in a series of telephone calls and letters about the bogus posting. But AOL allegedly refused to take down the material. Then the prankster put more messages on the site from Ken, not only producing more calls but leading an announcer for the Oklahoma radio station KRXO to read the messages and encouraged listeners to call Zeran.
The Fourth Circuit held that Section 320 blocked any liability, even if AOL was informed of the falsity and harmfulness of the information. It was a very harsh decision and it is not clear that the federal law was truly intended to protect these companies for any liability under any circumstance for false and harmful postings.
LaRussa’s complaint below includes such allegations as cybersquatting and trademark dilution. These are particularly interesting because Twitter is obviously benefited from having celebrities twittering on their sites (though there is no shortage of such figures). Other claims like misappropriation of name and likeness are more conventional attacks.