Should the Murdochs Sue Twitter for Verifying Wendi Deng? (Analysis)

Rupert Murdoch Wendi Deng Red Carpet - H 2012

Rupert Murdoch Wendi Deng Red Carpet - H 2012

Celebrities often are impersonated on Twitter. Some have complained and some have sued. It's against Twitter's terms of service to impersonate, yet the social media site has largely looked the other way when users pretend they are some famous individual. We all understand parody, and besides, Twitter has established a "Verified Account" service to sort the real celebrities from the fake ones. But what happens when Twitter says someone is real and he or she is not?

On Jan 1, one of the most buzzed-about items online was the sudden Twitter presence of media mogul Rupert Murdoch. It didn't take long for Murdoch's wife, Wendi Dengto join her husband on Twitter and set off a media firestorm by commanding Rupert to delete a tweet that said, "Maybe Brits have too many holidays for a broke country."

After Murdoch deleted the tweet, many press outlets joyously reported that Murdoch was getting tweet lessons from his wife. Many reporters felt comfortable in doing so because Twitter reported that @Wendi_Deng was verified. Turns out the individual behind this account was an imposter. News Corp says it has "no plans to pursue any actions." But could the Murdochs sue?

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Twitter has seen a handful of legal actions in the past few years over impersonation. Most of the cases are filed against a "John or Jane Doe" and target the imposter. As part of the legal proceedings, Twitter is served with a subpoena so as to identify the perpetrator.

Twitter itself has been sued a couple of times. In Britain, the high court issued an injunction when an unknown Twitter user impersonated a well-known right wing political blogger. The most famous instance, however, was former St. Louis manager Tony LaRussa's quickly aborted lawsuit against Twitter for hosting an impersonator. 

Most legal observers agree that Section 230 of the Communications Decency Act of 1996 immunizes websites like Twitter from liability on potential defamation and privacy claims for offending third-party comments. In its terms of service, Twitter is careful enough to disclaim responsibility over user posts, largely with the interest of getting statutory protection against lawsuits.

Before LaRussa settled, he tried to beat this legal shield several ways. Among the most important in his complaint: He invoked trademark and rights of publicity statutes in an effort to show that consumers were deceived. And he pointed out that Twitter encouraged users to sign up "to start receiving Tony LaRussa's updates."

Still, because Twitter is an intermediary, most legal observers deemed his lawsuit to be "tenuous." Reportedly, the LaRussa case caused Twitter to start its celebrity verification program.

Was that a mistake?

Now, after News Corp. has confirmed that @Wendi_Deng is a fake, the person behind the account is apologizing. "I'm sorry if some of you feel misled by this Twitter account, but I never said it was genuine," the person said in one tweet. "I never said it was a spoof either."

Later, the fake Deng added, "It might be only a small matter, but you have to worry about the management of News International and Twitter if...

Indeed. Twitter should be embarrassed by what just happened. 

"We don't comment on our verification process but can confirm that the @wendi_deng account was mistakenly verified for a short period of time" Twitter spokesperson Rachel Bremer said."We apologize for the confusion this caused."

And what about the supposedly strong Section 230 shield?

If the Murdochs did choose to bring claims of defamation, publicity misappropriation, trademark dilution, misrepresentation and more, can Twitter really get away with merely passing responsibility for the confusion to the user who fooled us all? It may be argued that when Twitter verified @Wendi_Dang, the social media site wasn't playing intermediary, but rather reporting something to be true.

If the La Russa case caused Twitter to adopt celebrity verification in the first place, it wouldn't be too far-fetched to see the latest ordeal end this program. It might not even matter whether the Murdochs take Twitter to court.


Twitter: @eriqgardner