Another Article on BiBi – Whose profile is this anyway?

Another Article on BiBi – Whose profile is this anyway?

Adi Marcus, Adv.
February 18, 2024

Bibi is a justice fighter, a defender of civil rights, a knight of freedom of expression, but he is also a fictitious character that exists only in cyberspace and is not based on any real character, just like AA who preceded him, and CC, DD, EE and FF, who will come after it. So who really controls him and is that woman or child or maybe an extremist messianic political party personally responsible for everyone who was harmed by Bibi's actions?

The use of fictitious profiles on social media is a well-known phenomenon that has become more widespread in recent years, despite the apparent efforts of the companies operating the social media platforms to combat the phenomenon (cynics will say that the companies actually like fictitious profiles which help show a volume of activity greater than reality and are fighting them only to avoid liability for contents). As with any phenomenon related to the world of the Internet and social networks, it holds great potential and fundamental disadvantages. In the above example, BB can be used to promote the destructive political goals of extremist parties, but it can also be a business advantage to help commercial companies get information about their customers' consumption habits, to distribute information about their products to potential customers in an accurate and personal way, or to allow a group of people to exercise their right to freedom of expression while avoiding harmful consequences.

A fictitious profile is actually a profile that looks real and authentic to everyone, but is hiding a person with false user details behind it. Creating a fictitious profile is prohibited according to the Terms of Use of most social media platforms (including Facebook, LinkedIn, Instagram, etc.), which require that each profile be identified and associated with a real specific person who can be located using various identifying details, but in practice this is a widespread phenomenon and a loophole which social media platform are incapable, both technically and in terms of the required investment in manpower and resources for the purpose of locating any fictitious profile as mentioned, to combat (and whether their own interests are to combat this phenomenon is in itself a fascinating question).

Unlike the Terms of Use of the social media platforms, Israeli legislation does not, per se, prohibit the use of fictitious profiles. The Israeli Penal Code, for example, prohibits impersonation, but not of a fictitious character. Thus, as long as there is no use of a picture or details of a real person and there is no attempt to cause belief that the profile belongs to any specific real person - the use of a fictitious profile is not in itself a criminal offense. Similarly, the use of the fictitious profile for the purpose of collecting information, and perhaps even for distributing information, is not necessarily illegal, and the method of collecting or distributing the information, the type of information and its uses must be reviewed. For example, using a fictitious profile for the purpose of copying the content of private documents constitutes a violation of the Privacy Protection Law and using it to spread false information about any person can constitute libel.

The Courts have set that fictitious profiles are not legitimate actors in the public sphere and their operators cannot be protected under the guise of freedom of expression or any privacy law, which, in turn, paved the way for a number of decisions in which the social media platforms were required to reveal details that will help identify those who operate fictitious profiles for negative uses, such as in the case of a person who used a fictitious profile for the purpose of publishing defamatory content. More than once it has been held that the social media platform can be required to disclose information such as URL, IP, login times, etc., provided that there is justification for such disclosure and the fictitious profile did make false or offensive advertising in a way that can be proven. Strangely, the companies that operate the social media platforms have expressed time and time again their reluctance to provide such details, despite the fact that, as mentioned, according to their own Terms of Use, profiles of this type are prohibited, and even though the companies present themselves as acting by themselves to remove such profiles.

Using a fictitious profile or dealing with a fictitious profile are material issues, which open a whole world of questions, and require careful planning (for example, sometimes it is useful to run a fictitious profile from specific countries that have favorable legislation). Therefore, whether it is a business that seeks to use a fictitious profile or someone who wants to take action against the operator of one, it is important to consult a lawyer with expertise in the field.