A fake social media account could result in legal action against the impersonator in terms of either civil or criminal law. However, this presupposes that one is able to ascertain the true identity of the person behind the impersonation. This is not easy.

We often get asked to assist our client’s exercise their rights against people or companies who have infringed their trademarks or impersonated them on various social networking services like Twitter, YouTube, and Facebook or harass or defame them through another fake identity.

The one thing that we are able to advise our clients about with certainty is that when it comes to non South African companies, there is often unfortunately no clear-cut and quick solution, especially when the perpetrator hides behind a pseudonym or gives a false email address.

When it comes to online impersonation, the legal issues are complicated as they not only involve areas of our law that have not been tested by our courts but also areas of private international law – Twitter for example has no legal presence in South Africa, only the United States, which makes it difficult for a South African court to exercise jurisdiction over Twitter.

We often advise our clients to follow a two-stage approach to finding out who is behind the impersonation:

  • Stage 1: Get the social media service to reveal the identity of the impersonator who created the fake social media account.
  • Stage 2: Institute legal proceedings against that person.

Stage 1 – Who is responsible for the impersonation?

If one uses Twitter as an example, Twitter will only reveal the identity of a user if they are required to do so “by appropriate legal process such as a subpoena, court order, or other valid legal process documents” (see their Guidelines for Law Enforcement). They do not state whether they will recognise a South African or US “subpoena, court order, or other valid legal process documents”. This is important as some US companies (like Google) will recognize and act upon any court order from any country.

Most social media services will only assist with “pending criminal investigations in foreign countries” provided that a South African Order is given to a US court (in terms of a “mutual legal assistance treaty”) compelling it “to order a person to produce documents for use in a proceeding in a foreign or international tribunal, including criminal investigations”. Twitter has previously informed us by email as follows:

“Twitter, Inc. is only located in San Francisco, California, and will only respond to requests for information issued from an appropriate court.

Requests for information to aid in pending criminal investigations in foreign countries are governed by 28 U.S.C. §1781-82 and an applicable mutual legal assistance treaty (if one is in effect), which may authorize district courts within the United States to order a person to produce documents for use in a proceeding in a foreign or international tribunal, including criminal investigations. It is our policy to respond to such orders.

Should your request meet the above requirements and appropriate legal process is issued, Twitter will process the request according to our standard procedures, which include notice to the Target User of your request to give him or her an opportunity to move to quash. If no motion is made or the motion is denied, Twitter will reasonably respond to an appropriate order or other legal process with records in Twitter’s possession that to do not contain the contents of communications.

Sincerely,

Twitter Legal”

Twitter, therefore, requires that:

  1. there be a pending criminal investigation and
  2. you get an Order from South Africa in terms of “an applicable mutual legal assistance treaty”.

Based on our investigations, it appears as if an “applicable mutual legal assistance treaty”, does not exist with South Africa. If it does, this would involve a two-step process: first one would have to get an order in South Africa, and then secondly, one would have to get that order recognized by a US court. There would be costs involved in the hiring of a US attorney to get the South African Order recognized in the US.

As an alternative, one can get a US firm of attorneys to approach the US courts directly for what they call “a John Doe order”. This is of course subject to the US attorneys being satisfied on the facts that it is worthwhile to do so. John Doe is the mechanism for filing a lawsuit against an unknown party. Some states do permit the filing of a subpoena prior to instituting a legal action. However, based on our experience this is very expensive: about US$10,000 to $15,000. The process could take 45-60 days.

So the way forward for many is a frustrating, if not an expensive one.

Stage 2 – Institute legal proceedings against that person

If one is able to ascertain the identity of the impersonator, one can attempt to institute legal proceedings against that person, either in the country where they live, or in South Africa (if they live here, or if you are able to ‘found jurisdiction’ here). Both civil or criminal proceedings can be instituted. For an interesting perspective on this, read our article “Liability for impersonating someone online“.