The Blog Impersonators
posted by Daniel Solove
OMG I CAN’T BELIEVE I’M THE NOMINEE!!!
This is BIGGEST DAY OF MY LIFE!!! EVER!!!!
OMG OMG OMG
Needless to say, it’s a fake. And so is a blog called Luttig’s Lair purportedly written by Judge J. Michael Luttig.
Anyone can sign up on a free blogger platform, such as Blogger, and create a blog. In anybody’s name. In your name. You might have a blog and not even know about it.
The Miers and Luttig blogs are quite funny because everybody knows they’re phony. But it is easy to imagine a case where reality and parody are not so readily discernable. What’s to stop me from creating a blog by you? (Don’t even think of vice-versa!)
The law provides at least two potential remedies. One is the tort of libel, which provides for damages when a person publishes falsehoods that damage the reputation of another. This wouldn’t apply to Miers because the blog is an obvious parody – no reasonable person would think it were true.
The second is the tort of appropriation of name or likeness, which makes another person liable if she appropriates for her own benefit the name or likeness of another. Typically, however, appropriation applies to the use of a person’s name or likeness in connection with a commercial endorsement (though not always).
There’s a difficulty, however, with any legal remedy – anonymity. To the extent people can create blogs in ways that their identity cannot be linked back to them, how can victims sue for redress?
This issue is a difficult one. On the one hand, we want to protect anonymous blogging, since people can suffer severe consequences from their blogging such as being fired from their jobs. Indeed, I just blogged about the importance of protecting anonymous posting to blogs.
On the other hand, true anonymity (non-traceable) can practically immunize the anonymous blogger from being sued for committing these torts. How should this tension be resolved?