Creating a Legal Framework for Online Identity

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Article: Trademark Law and the Social Construction of Trust: Creating the Legal Framework for on-line [[]]Identity by professor Beth Noveck of New York Law School.



Trust is an emerging property of a network of individuals, not a social construction by an individual or a group, argues Peter St. Andre at

"Where Professor Noveck goes wrong can be gleaned from the very title of her paper, which argues that reputation is a “social construction” (explicitly created by, and therefore the property of, a group) rather than an emergent property of social interactions. Her thinking about reputation (which she considers one aspect of, or in large measure co-extensive with, identity) is deeply influenced by the metaphor of social construction. Here are some relevant phrases:

  • “the way identity is constructed in online environments”
  • “the positive construction of reputation”
  • “in a social software environment … identity is socially constructed”
  • “digital life is transforming identity and its construction”
  • “it is important to make clear how the collective construction of reputation in social software actually works in practice”
  • “the story we tell ourselves about identity and reputation does not make sense in a world of collaboratively-constructed reputation”
  • “this narrative about how identity is constructed does not comport with the reality of identity being, not something that we only invest in as individuals, but something that is directly socially constructed by the group”
  • “the fact that new social software transforms the construction of identity and reputation from an individual into an explicitly group process points the way towards trademark as the most apropos legal protection”
  • “trademark theory gives us a way to make sense of the landscape of on-line identity because it, too, concerns the social and collective construction of ‘branding’”
  • “the trademark theory of identity helps us to distinguish between representation, which is weak, thin, and individually authored and stronger, thick, and communal construction of reputation”
  • “the public plays a role in constructing reputational identity”
  • “it is the group or the community … that creates reputation”
  • “identity … in not purely an individual construct … it is inherently the work of the group”

We face here a false dichotomy: either reputation is purely an individual construct or it is inherently the work of the group. But recognizing that others play a role in reputational identity does imply that others actively construct one’s reputation. In particular, Noveck misses another possible explanation: that reputation is an emergent property of human interactions. Just as prices are not collectively created by economic actors in a market, so reputation is not collectively created by social actors in a community. Instead, reputation emerges; the fact that reputation seems orderly does not imply that this order was created or fixed by a group.

The point may seem arcane, but it has practical consequences. Noveck’s argument for collective creation leads her, reasonably enough, to an argument for collective rights:

  • “we lack the mechanisms to protect the rights of the communities in the reputations that they collectively create”
  • “we need a view of identity that accouunts for the malleability of representation and the collaborative creation of reputation and that recognizes the interests of the collective as well as of the individual in the way identity is constructed in online environments”
  • “this article proposes to re-center the doctrine of identity from one of individual rights to one that recognizes the group interest in the creation and use of reputation as a signalling mechanism for successful collective action”
  • “my aim is to focus on the social ascriptions of identity that support group belonging and collective action on-line”
  • “identity is a form of collective action”

Call me paranoid if you will, but I get concerned when thinkers talk about collective rights and collective action (we had quite enough of that in the 20th century, thank you very much). It is true that all individuals who wish to productively interact within a community benefit from the existence of reputation as a signalling mechanism; but that does not mean that reputation is a matter of collective interest or group belonging. Reputational signals are used always by individuals within a community and make it easier for those individuals to decide with whom to interact. Thus the benefits of reputational effects are dispersed among all members of the community. But it is a serious error of reification to therefore conclude that the group or community or collective realizes benefits, possesses rights, or pursues actions." (

More Information

See our entries on Identity, Trust and Reputation