August 09, 2017

“Catfish” Added to the Sea of Litigation

Zachary Heck

MTV’s Catfish: The TV Show exposes one of the Internet’s darkest trends: catfishing. Catfishing is an online scam where a predator impersonates someone else to deceive a third party. Most often, catfishing occurs when someone steals another person’s photograph and personal information to build a fictitious social media persona and use it to lure potential victims into a romantic relationship. Sometimes the catfish scheme is a joke; sometimes it is organized to gain the victim’s financial information. In response, the victims of a catfishing scheme may harass the person whose photo and other information was used, whether the person authorized use of their information or not.

The large number of social media applications means there is a high probability that someone could use your picture and information, and you may never realize your information has been compromised. But what if you are scrolling through Facebook, Instagram, or even Tinder, and discover your digital doppelganger?

If someone uses your photograph or information to orchestrate a catfishing scheme, you have few options for legal recourse. Depending upon the circumstances of the case, the individual whose pictures or information are used may have a claim against the perpetrator for misappropriation of likeness, or maybe even defamation if the perpetrator makes false statements that harm the reputation of the victim. Intentional infliction of emotional distress and harassment claims may also be available. But until recently, legislatures have failed to create legislation specifically aimed at the growing trend of catfishing.

Last November, Oklahoma’s Catfishing Liability Act of 2016 went into effect. Signed into law by Governor Mary Fallin, this is the nation’s first law aimed at catfishing. It allows people whose names, images, voice, or other personal information are stolen to “create a false identity on social media” an opportunity to request an automatic injunction against the person using them. The law also permits victims to seek monetary damages, including a minimum award of $500 in punitive damages. What distinguishes this law from other state laws against impersonation is that it applies explicitly to situations when the victim’s information is used to create an entirely new, fictional persona.

The law does carve out a few exceptions. Fictitious personas created by law enforcement are exempt. Profiles created as satire are also not subject to this law. But otherwise, the law enables those whose information has been used to potentially victimize unsuspecting third parties to bring a civil action and seek a minimum statutory award of damages, even if the person has trouble proving actual damages.

Catfishing is frequent enough to demand legal recourse; after all, the phenomenon is the subject of a weekly cable television program. Although Oklahoma is the first state to enact this kind of legislation, other states—California, Pennsylvania, and Texas—have reportedly looked to Oklahoma’s law to craft their own catfishing laws. So do not be surprised if in the future MTV acquires the rights to a new reality show, Law & Order: Catfish Victims Unit.

Zachary Heck

Zachary Heck is an attorney at Faruki Ireland & Cox P.L.L. in Dayton, Ohio.