What are your legal rights when you get “catfished” online?

by James A Cracolici on May. 28, 2015

Consumer Rights Identity Theft 

Summary: The term “catfishing” was coined by a filmmaker named Nev Schulman in 2010 as the title for his documentary about falling in love with a girl on Facebook who turned out not to be the person she claimed to be online.

I do not remember the last time I actually watched a music video on MTV.  It may be sometime in the late 1990s.  The network basically took the reality show format and made a full programming schedule.  It gets ratings though.  And my kids love it.  Especially the show “Catfish” the TV Show.  

MTV states the show “[t]ackles the mystery and complexities of dating in a digital world. According to an MTV survey of Millenials 18-24 years old, 1 in 4 has online dated, 1 in 2 has a friend who does it and, in the past three years, traffic to top 10 online dating sites has tripled. In a world where everyone is constantly connected digitally, social media has made communicating easier but this digital world might also complicate relationships.”

Six months ago, through the very public embarrassment of Notre Dame Linebacker Manti Te’o, the nation was introduced to the phenomenon of “catfishing”. It is not a new practice.  It is as old as the internet itself.  Typically we heard of it in context of a pedophile posing as an underage man online to initiate contact with an underage girl.  However, there appears to be a large segment of  youth who are having what appears to be, relationships based almost exclusively based on online contact and text messages.  With the explosion of social networks the practice has become even more prevalent.  In this world the “catfish” thrives.

The term “catfishing” was coined by a filmmaker named Nev Schulman in 2010 as the title for his documentary about falling in love with a girl on Facebook who turned out not to be the person she claimed to be online. MTV turned the film into a successful television series in which Schulman helps people realize that they too are being deceived by people who they have met online. 

Catfishing is not generally prosecutable as a criminal offense. However, several states have enacted online impersonation laws. Twelve states make it a crime to impersonate someone online, but those laws generally don’t apply to only the creation of a fictitious person. Only Missouri’s cyberbulling law mightallow charges in that situation, if the crime had occurred there and the catfish intended to cause emotional distress.  It has never been tested in Court as of the date of this article.

New York has a “catfishing” statute codified in Penal Law § 190.25 also known as “Criminal impersonation in the Second Degree”.  The statute states:

A person is guilty of criminal impersonation in the second degree when he:

4.  Impersonates another by communication by internet website or electronic means with intent to obtain a benefit or injure or defraud another, or by such communication pretends to be a public servant in order to induce another to submit to such authority or act in reliance on such pretense.

Criminal impersonation in the second degree is a class A misdemeanor.

The key language in the statute is that the person must intend to “obtain a benefit or injure or defraud another”.  If the only damage to the “catfished” individuals was a shot to their ego, it is hardly a criminal offense.  That person would have to attempt to profit from these false relationships.  I searched for any relevant cases where this statute was cited and came up empty.  It is such a new type of offense, that there is really no law available on the subject.

Clearly the states make a distinction between creating merely creating a fake personality online versus creating one for criminal mischief or deceit.  Recently in New Jersey, a woman was prosecuted for identity theft after creating a fake Facebook profile that depicted her ex-boyfriend, a narcotics detective, as a sexual deviant and a drug addict (See, People v. Thornton).  Similarly, in 2011 a California teenager who stole his classmate’s Facebook password and posted sexually explicit material about the victim, was sentenced one year in a juvenile detention center. (See, In re Rolando S.).  

The term “catfishing” made its first official appearance in the court record in a case known asZimmerman v. Ball State.  This case from Indiana, involved two college students at Ball State University who pranked an ex-roommate. They created a fake Facebook profile for a high school sophomore and had “her” start up a Facebook friendship with the victim.  In late 2011, after a few weeks of communicating, the ex-roommate scheduled a date with the fake girl. When he walked into the movie theater lobby, he found his ex-roommates waiting for him.  They used a smartphone to videotape him while they told him the girl was fictitious and that he had actually been communicating with them. They then posted the video to YouTube.  He complained to the university about his classmates and they were subsequently suspended for a year.  The students challenged the ruling in court stating that the University’s ruling violated their First Amendment and due process rights.  The Judge Jane Magnus-Stinson was unsympathetic to their claims, finding that their conduct was objectionable enough to warrant censure by the university. She specifically calls them out for “catfishing” their victim.  It appears that this was the first legal case to use the “catfishing” name terminology specifically.

While criminal prosecution seems unlikely, the victim of a catfishing crime may be able to file a civil lawsuit against the “catfisher”. Tort claims may exist, such as intentional infliction of emotional distress, fraud, misrepresentation, or negligence. To succeed in his or her case, the victim would need to prove that the acts of the “catfisher” were intentional and that he or she suffered some physical, emotional, or monetary damage. Embarrassment alone is unlikely to net any kind of recovery. 

In an Illinois case known as Bonhomme v. St. James (2012) a plaintiff alleged to suffer severe emotional distress based on defendant's creation of fictional online persons who interacted with plaintiff and sent her gifts over a period of nearly two years. When the parties made plans to meet and to move in together, defendant pretended that the fictional male died of liver cancer. The other fictional characters sent plaintiff condolence letters. However, the Illinois court held that plaintiff failed to state a cause of action for fraud. They stated that the case involved two private persons engaged in a long-distance personal relationship. Although it was a personal relationship built wholly on one party's relentless deceit, it was a purely personal relationship nonetheless. Plaintiff and defendant were not engaged in any kind of business dealings or bargaining, and the veracity of representations made in the context of purely private personal relationships was simply not something the state regulated or in which the state possessed any kind of valid public policy interest. Consequently, the alleged facts were not the types of facts upon which a claim for fraudulent misrepresentation could be pled.  

After the very public Manti Te’o affair and the MTV show “Catfish”, it appears that this was not an unusual situation and it happens more often than we would like to admit.

(Originally Published September 12, 2013 at http://cracolicilaw.blogspot.com/2013/09/what-are-your-legal-rights-when-you-get.html)

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