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When Imitation Isn’t the Greatest Form of Flattery

By Dennis Wickham

An integral part of growing a business is the utilization of social media websites like Facebook.

False profiles and pages—pages representing themselves as or implying a relationship to your legitimate business—however, can harm your brand and add a level of difficulty to building an audience and creating a dialogue with existing and potential customers.

With monthly users numbering in the millions and even billions on Facebook, Twitter, Instagram and other major social media websites, falsification is an ever-growing problem. Fake profiles targeting the general user mimic businesses, celebrities and, even, private persons. Falsified profiles, some of which are computer generated, can utilize photos and information of legitimate businesses and everyday users.

What happens when it’s your business—or your likeness—that’s being exploited? Fortunately, Facebook has fake-profile reporting mechanisms in place.

While the creation of fake profiles is a form of identity theft, Facebook is generally protected under federal law against liability for content posted by users. Earlier this year, Facebook reported its monthly worldwide users numbered more than 1.65 billion—with each real user willingly disseminating personal information about their lives to the masses in varying degrees dependent upon their privacy settings.

In 2014, the social media giant claimed that fake accounts made up 5.5 to 11.2 percent of its monthly active users—meaning at the time between 67.65 and 137.76 million Facebook profiles were considered duplicate or downright false. With the rise in mobile-device applications, Facebook’s metrics for tracking such profiles could be affected, leaving it up to the general user to identify fake profiles for removal.

How to Report Imposter Accounts

Facebook offers two methods for parties, both Facebook users and non-users, to identify and report imposter accounts.

The first method, reporting imposter accounts directly to Facebook, provides non-Facebook users with an online form to report someone pretending to be them or their business. The form asks for the false-account reporter to describe their situation with one of the three following options:

  1. Someone is using my email address on their account
  2. Someone created an account for my business or organization
  3. Someone created an account pretending to be me or a friend

Facebook will also ask for proof of identity such as a copy of a driver’s license.

 

With accounts utilizing emails of someone else, Facebook allows non-users to file a report or unsubscribe from Facebook notifications if receiving them. For users, Facebook suggests adding the email in question to their profile—effectively removing it from the false account. The social media giant gives more options for those reporting fake accounts associated with businesses and organizations—including measures to report content and profiles that violate intellectual property rights such as copyrights and trademarks. Experience has shown that using this option can effectively remove a false Facebook page in six months.

To protect a personal or business name and likeness, it may be necessary to create a “true” account. This can be done by visiting facebook.com and signing up using your first and last name, phone number or email address and birthday.

The second reporting method, for Facebook account holders only, includes the following steps:

  1. Go to the impostor profile
  2. Click on the cover photo and select “Report”
  3. Follow the on-screen instructions

While it is effective for the person or business being falsely represented to knock out false profiles by reporting them, it is also helpful if Facebook users associated with the “true” person and/or business also visit the false account and report it as an imposter to Facebook administrators. This can be done by connecting as a “friend” with the true account then, when reporting, checking the option that the false account is “impersonating my friend.”

 

Going the Outside Litigation Route

The world’s largest social networking site is exempt from discovery for user-posted content under the federal statute—the Stored Communication Act, 18 U.S.C. section 2701—which sets Fourth Amendment-like privacy protections for online communications.

With such protections, Facebook isn’t likely to respond to attorney demands and/or requests for account owner identities. It will, however, respond to civil subpoenas requesting subscriber information—if, let’s say, you have an idea of the person behind the false account. Without any knowledge of who could have set up the false account, this route could prove fruitless, time consuming and expensive.

California law, too, provides some privacy protections. Under the state’s privacy laws, there is private cause of action for injunctive relief and damages.

When seeking the removal of false pages, dealing directly with Facebook may be the best bet. It can be slow-going, but taking this approach has proven to be effective and inexpensive. Facebook has designed their reporting systems to address issues specifically—problems related to false profiles, spam, phishing, clickjacking security and more—in order to handle matters internally and without litigation.

For more information on false pages or the impact of social media on your business, contact Dennis Wickham, a shareholder at Seltzer Caplan McMahon Vitek whose practice centers on business and real property litigation. He can be contacted at wickham@scmv.com.

June 29th, 2016  |  Categories: News