Internet Law

Why Internet imposters are difficult to prosecute

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The phenomenon has become so common it has a name: catfishing. Someone creates a fake online persona and uses it to lure the victim into an Internet romance.

According to Notre Dame, its star linebacker Manti Te’o got catfished. In interviews, he told of losing his girlfriend to leukemia, but Deadspin reported this week that the woman—Lennay Kekua—didn’t exist. The news has legal experts considering whether the perpetrator of the hoax could face criminal charges or civil liability.

Criminal charges would not be successful if the hoax was merely a game and the online persona was purely fictional, according to legal experts interviewed by the Wall Street Journal Law Blog, the New York Times and NBC News. “If we started to prosecute practical jokes, you would run into First Amendment issues, and we would overwhelm the scarce prosecutorial resources that could be put to better use,” criminal defense lawyer Ben Brafman told the Law Blog.

Twelve states make it a crime to impersonate someone online, but those laws generally don’t apply to creation of a fictitious person, according to NBC. Only Missouri’s cyberbulling law might allow charges in that situation, if the crime had occurred there and the catfish intended to cause emotional distress.

Lennay Kekua appears to be an invented person, though some reports say the “catfish” used the photo of an unsuspecting woman, who lives in California. If the woman did not give her permission to use the photo, that could be a crime under California’s online impersonation law, according to digital law expert Bradley Shear, who spoke to the Times and NBC.

Criminal charges could also be brought if there was intent to blackmail or obtain money, according to Shear and Brafman, but that allegation has not been made in the Manti Te’o hoax.

Shear also pointed to First Amendment issues, noting a U.S. Supreme Court ruling striking down a law that makes it a federal crime to lie about receiving military honors.

Could Te’o win a civil lawsuit? Shear said it would be difficult. The football player would have to “prove that direct, causal connection” between the hoax and financial loss caused by a lost endorsement opportunity, for example, or a lower NFL draft position. Brafman also talked of the possibility of a civil suit for severe emotional distress. “There’s a huge difference between civil and criminal liability in a case like this,” he told the Law Blog.

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