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Sept. 15 — The tort of invasion of privacy via appropriation of name or likeness is an actionable cause of action against a Twitter Inc. user whose “handle” or username contained the name of the person the user purported to be, the U.S. District Court for the District of New Hampshire held Sept. 14.
Judge Steven J. McAuliffe said leveraging a name and reputation to give fake “confessions” a false credibility was actionable conduct even absent any desire for specific financial gain.
The decision shows that impersonating people on social media may have real legal consequences, even if they are public figures, if the impersonation has malicious intent.
The New Hampshire tort of invasion of privacy by misappropriation of name or likeness protects “the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or to others,” the court said, citing Remsburg v. Docusearch Inc., 149 N.H. 148 (N.H. 2003).
Plaintiff June White is the mother of Ultimate Fighting Championship president Dana White, about whom she has written an unauthorized biography. Using a variety of Internet pseudonyms and platforms and claiming to know her personally, defendant Cynthia Ortiz posted extensive derogatory information about White, accusing her of being a bad mother with no relationship with her children and of being mentally ill. Ortiz also used the Twitter handle @RealJuneWhite to post statements, purportedly by White, apologizing for her book and saying its contents weren't true.
White brought claims against Ortiz for invasion of privacy by appropriation of name, defamation and libel per se. Ortiz moved to dismiss the claims, arguing that her posts were protected by the First Amendment and that she didn't benefit financially from her appropriation of White's name.
White stated a claim for appropriation of likeness or name, the court found, because the appropriation gave her posts credibility. “Absent the use of White’s name in association with those statements, Ortiz would likely have been seen as simply another crank publishing incendiary, derogatory, and demeaning comments on Twitter,” the court said. “But, by appropriating White’s name (and the credibility and notoriety associated with that name), Ortiz added weight and validity to her posts.”
That credibility, the court said, furthered Ortiz's goals of defrauding the public, depressing her book sales and ruining her reputation.
Ortiz argued that the use of “Real” in a Twitter handle signals the possibility of impersonation, but the court noted numerous famous individuals, including presidential candidate Donald Trump, use “Real” in their Twitter names, presumably because their name standing alone is already in use.
The court also found that even if White is a limited purpose public figure, as Ortiz argued, the statements she alleged were made with malice, i.e. reckless disregard to their falsity. However, the extensive attachments she attached to her complaint didn't identify with specificity which statements she was suing over, in addition to 11 statements specifically named in the complaint. The court order White to amend her complaint to identify the allegedly defamatory statements with specificity.
Shaheen & Gordon represented Ortiz. White represented herself.
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