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Lawyer Warns Jen Rubin of ‘Streisand Effect’

WaPo‘s Jennifer Rubin tweeted late last month that she was working to have an imposter removed from Twitter. Today, the fake account is still up, active and causing all kinds of trouble.

“I’m sure it’s fun for the @JRubinBIogger account to fool people, but it’s extremely unfair to @JRubinBlogger,” a sympathetic Dave Weigel of Slate tweeted Saturday. New York magazine’s Jonathan Chait questioned, “How can there be two Twitter accounts with the same name?” Rubin chimed in to explain that the fake Rubin’s username is spelled with a capital “i” instead of a lowercase “l” in “Blogger.” Though the fake account generally tweets things that parody conservatives and the bio on the fake account says “Not the real Rubin, duh,” the font Twitter uses renders the two names indiscernible.

Rubin told Weigel and Chait that “we are taking legal action.” Asked if “we” refers to WaPo and whether she has retained a lawyer, Rubin told FishbowlDC, “We are asking Twitter to remove it.”

Twitter is only six years old and even younger in terms of mainstream popularity. As with everything else on the Internet, laws that govern it aren’t quite set in stone. David L. Hudson Jr., a lawyer and scholar with the First Amendment Center who also teaches media law at Vanderbilt University, compared Rubin’s problem to cyber squatting — a practice wherein one person buys an obvious domain name that would be beneficial to someone else. For example, it would be like V.P. Joe Biden purchasing the domain “PaulRyan.com.”

If [Twitter impersonators] get to be enough of a problem there may have to be another law passed,” Hudson said. He called it a “balancing act,” of protecting someone’s privacy and publicity rights while also protecting the right “to comment and parody and otherwise engage in protected speech.”

Hudson wouldn’t comment on whether Rubin could make a case in court, but said “generally” courts are applying existing law to new media.

And existing media law is tricky enough. “Parody is generally permissible under the law,” said Erik Pelton, a trademark and copyright attorney in Virginia. “Several areas of law could intersect in these cases,” he said, “including rights of publicity, which are complicated because they vary significantly by state.” Pelton added that even at the state level, it is “difficult” to determine what law to apply and said that if something “is clearly a parody based on its tone and substance,” it would be “difficult to shut down.”

Lastly, Pelton warned that Rubin should be cautious of the “Streisand effect,” a phenomenon that occurs when attention is inadvertently directed at something by complaining about it.

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