Staying safe in our digital world is no easy task. A proliferation in online impersonations has caused many All About the Tea posters to consider, Why aren’t those who catfish brought to justice and prosecuted? How is it that the first wife of polygamist patriarch Kody Brown cannot find comfort in the courts when the woman Meri Brown from Sister Wives thought was a man tricked her into an online relationship? Sometimes there are wrongs for which no criminal or civil liability attaches.
Catfishing is the phenomenon where Internet predators fabricate online identities to deceive people into emotional/romantic relationships and/or swindle them. TLC Sister Wives star Meri Brown admitted she was catfished after having an online relationship with a man named “Sam” who turned out to be a woman, Jackie Overton. Meri said she was fearful that the person would ruin her life because there were threats and overtures to break up her family. Things began to take a sinister turn when Meri’s online admirer allegedly made veiled threats about how he had a female friend who could hack her phone and technology. She is now divorced from Kody Brown and online impersonations continue, with varying consequences.
Catfishing can involve crimes such as cyberbullying; blackmail; forgery; identity theft (used to protect people against financial harm caused by a fraudulent identity); email hacking; and harassment. In the case of cyberstalking, the laws are intended to prevent threatening online conduct where the victim is likely to fear for his or her own physical safety due to the conduct of the perpetrator.
Generally, state legislatures have been slow to embrace legal remedies for victims of online impersonation. State online impersonation statutes differ wildly in their scope but typically to make out a criminal case, a prosecutor must be able to prove 1) the impersonation was without the victim’s consent; 2) it was done via electronic means such as social networking sites, email, text message; and 3) the perpetrator must act with the intent to harm, intimidate, threaten or defraud.
Laws in California, New York, and Oklahoma (where Jackie Overton resides), require the false representation to involve an actual person and be for the purpose of harming, intimidating, threatening, or defrauding another. Nevada’s false impersonation law, which is in place where Meri Brown resides, only makes it a crime to pass oneself off as someone who’s real, not a fictional character.
The victim of catfishing may also be able to seek legal recourse by filing a civil lawsuit against the perpetrator. The victim may be able to bring a tort claim, such as intentional infliction of emotional distress, fraud, misrepresentation, or negligence. To succeed, the victim would need to prove that the perpetrator’s acts were intentional and that he or she suffered some physical, emotional, or monetary damage.
First Amendment Consequences
The U.S. Supreme Court regularly considers what, if any, are the proper limits of free speech? The state rules cited above regarding online impersonation may very well infringe on the First Amendment and be declared unconstitutional. Should online impersonation victims be able to carve out a much-needed exception to free speech protections?
In 2012 SCOTUS struck down a law (Stolen Valor Act) that makes it a federal crime to lie about receiving military honors and decorations on First Amendment grounds. See United States v. Alvarez, 567 U.S.__2012. The U.S. Supreme Court said you have a First Amendment right to state a falsehood despite the government’s argument that false speech adds little of value to society and thus is normally without First Amendment protection. Justice Anthony Kennedy’s plurality opinion in Alvarez established that untrue statements might receive First Amendment safeguards. He said to allow the government to punish false speech would have a chilling effect on expression.
An Inconvenient Truth
Key language in many state statutes is that the catfisher must intend to “obtain a benefit or injure or defraud another.” If the only damage to the victim is embarrassment or inconvenience, that is not a criminal offense. Additionally frustrating is the fact that it is difficult if not impossible to identify one’s alleged perpetrator because cyber crimes enable wrongdoers to maintain greater anonymity and further difficulties may arise when proving the perpetrator’s alleged intent.
The global reach of the Internet, the negligible cost of online activity, the expenses associated with civil litigation, and the relative anonymity of users frequently prevents holding catfishers legally accountable. Further, once a victim has uncovered the offender, where can the perpetrator be held criminally or civilly responsible? Matters of jurisdiction and choice of law are not clear-cut in online impersonation cases. Catfishing activities can take place in multiple jurisdictions complicating investigations and evidence gathering. A catfisher could affect somebody’s life in another part of the world and not set foot in the country where the victim resides. Some type of international response to handle these cases may be necessary. The reality is, existing cyber harassment and identity theft laws may not be sufficiently broad enough to be applied to online impersonation cases.
The law must catch up to technology. The problem of Internet impersonation is intensifying with the growing availability of personal data online, as well as the increase in social networking sites. What role, if any, should social media providers have in policing online impersonators? As per filmmaker Shannon C. Keith, a documentary is in the works that will cover Meri as “the catalyst to have a discussion about catfishing, identity theft and fraud.” Grab your gavel, join the conversation, and tell us what you think about catfishing and cybercrimes.
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Stacy Slotnick, Esq. Bio
Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst Commonwealth Honors College. Stacy is the recipient of the Honors Deans Award; Simon and Satenig Ermonian Memorial Scholarship; College of Social and Behavioral Sciences Opportunity Scholarship; and College of Humanities and Fine Arts Scholarship. She is also a William F. Field Alumni Scholar, an honor bestowed upon the most academically distinguished students. In law school, Stacy won two CALI Excellence For The Future Awards® and received an Achievement Scholarship. She is a member of the New York Bar. As an entertainment lawyer, Stacy counsels clients on contracts, branding, and public relations strategy. She negotiates with agents, producers, production companies, and lawyers to secure rights to projects on behalf of high-profile clients. Her clever, spirited, no holds barred legal analysis can be found in articles for The Huffington Post.