The Australian cricket team might have needed not one, but two Adam Gilchrist’s in its side for the first Ashes Test in England over the last week. However, the man himself is less than impressed after discovering he has a Twitter Twin.
“Some people saying, you rely on the umpire. No you don’t, you rely on honesty. Disappointed by the Poms today, if you’re out — you walk,”
which was attributed by mainstream media to the real “Adam Gilchrist”.
Adam Gilchrist has since issued a statement saying that he had made no comments about Broad’s conduct, and that the Twitter account is a fake, set up in his name.
Cricket legend “Bill Lawry” (or at least, a Twitter account in his name) demonstrated his concern about the matter, ironically also via Twitter, asking about the legality of parody accounts. Well “Bill”, we saw your Tweet and while we’ve previously posted about this issue here, we wanted to expand on some of the points a little further.
Twitter’s Guidelines for Parody Accounts
Twitter users are allowed to create parody, commentary or fan accounts. However, accounts with a clear intent to deceive or confuse are prohibited as impersonation accounts and are subject to suspension by Twitter. Users can report impersonation directly to Twitter, but an account will not be removed if:
- The user shares your name but has no other commonalities; or
- The profile clearly states that it is not affiliated with or connected to any similarly named individuals.
Contrary to Twitter’s Guidelines, the Twitter handle and profile name of the fake Gilchrist account are both the exact name of the real Gilchrist. The real Gilchrist could consider reporting the account to Twitter, however, while Twitter may require minor changes be made to bring the fake Gilchrist account in line with the Guidelines, it is unlikely to remove the profile altogether. This is because the fake Gilchrist account profile does indeed state that it is a “parody, obviously”.
This demonstrates a potential gap in Twitter’s policy. Sure, the profile bio might state that the account is a parody, but one of the great aspects of the way Twitter operates is that it allows users to engage in conversations and reply directly to one another. In the midst of a Twitter conversation, it’s only by clicking on the profile link and being taken to a new page, that other users are going to know whether an account, which looks like Gilchrist and could reasonably sound like Gilchrist, is not in fact the real Gilchrist. This seems to leave a great deal of room for misrepresentation to occur.
Misleading or deceptive conduct?
While the obvious cause of action that might be open to Gilchrist is an action for misleading or deceptive conduct under the Australian Consumer Law, these provisions only prohibit conduct “in trade or commerce”. We’re not convinced this legislation would apply to the operation of a parody Twitter account.
So, what else could Gilly do to protect himself in this situation?
Adam Gilchrist actually holds some registered trade marks for his name, in classes which include “publicity”. Under Australian trade mark law, a registered trade mark will be infringed when a sign that is identical or deceptively similar to the mark is used in the course of trade as a badge of origin. However, we’re not sure if a parody Twitter account is really use “in the course of trade”.
Registered trade mark holders can also complain directly to Twitter via its Trade Mark Policy. This policy states that:
- where there is a clear intent to mislead others through the unauthorized use of trade mark, Twitter will suspend the account and notify the account holder; but
- where Twitter determines that the account is not purposefully passing itself off as the trade mark good or service (or person, in this case), the account holder will be given an opportunity to clear up any potential confusion.
Once again, there is no guarantee that Twitter would remove the account, but its Trade Mark Policy requires a lower test than that under Australian law.
Is defamation an option? A person might be liable for defamation if:
- He or she ‘publishes’ material;
- The material has a defamatory meaning; and
- The material identifies the complainant.
Material will have a defamatory meaning where it is likely to lower the complainant’s reputation in the minds of others. If fake Gilchrist started tweeting statements that affected people’s perception of real Gilchrist as a cricketer and all around good guy, this might be a problem. In this case however, the tweets would not necessarily be about Gilchrist directly. You’d have to try to argue that the Twitter account overall was defamatory, and that the account identifies Gilchrist. Then you would have to overcome the fact that the account does state that it is a parody.
As a final note, Gilchrist’s name is likely to be too insubstantial to attract copyright protection. While there are some photos of Gilchrist on the account that may be protected by copyright, it’s the photographer (or potentially the agency) who has the rights in the photos, not Gilchrist as the subject of the photos.
Gilchrist’s options therefore seem limited to requesting that Twitter require the account holder of “AdamCGilchrist” amend the account name to make it clearer that he’s not the real deal.
Good luck Gilly, we’ll be watching our Twitter feeds with interest…during the tea breaks, of course!