When is it unlawful to impersonate someone else?Posted on
The answer to this question is rather convoluted – almost always but not usually on it’s own.
With the exception of the specific offences of impersonating a law enforcement officer (and also a lawyer!), it is not unlawful to impersonate someone per se, however, it is very difficult to impersonate someone without then going on to commit another offence (either civil or criminal).
Online access means that impersonation is a growing problem, particularly on social media. Most social media sites and other websites have anti-impersonation policies and it is therefore possible to have fake pages removed, however, often it is more serious.
Many people overshare their own private information on websites such as Facebook, Twitter and Instagram. Whilst inadvisable it is not unlawful to breach your own privacy. Where an impersonator does so, however, a claim for misuse of private information is available. In Applause Store Productions v Raphael in 2008 (the so-called first Facebook case in the UK) information such as the Claimant’s sexual orientation, relationship status and political and religious views (though not all accurate on the profile) were held to be private information which was misused – resulting in a £2,000 award of damages.
What may be more sinister is when the impersonator starts to communicate with others. Those that communicate with a faker, and share personal information, may have very serious damages claims. In one such instance a client of mine was the victim of an impersonator. The faker swapped a number of intimate messages via social media with a young girl (believing that she was communicating with my client). The girl was devastated and would, if she had chosen to sue, have been entitled to significant damages for misuse of private information.
Where impersonation happens then false information and statements are automatically made. Provided some of those statements are defamatory – i.e. they tend to lower the victim in the eyes of right-thinking members of the public – then a claim in defamation is made out.
Breach of copyright trade marks and passing off
Where personal photographs are taken and used or company artwork and branding (including trade marked material) is copied and pasted on impersonation websites or social media pages then civil offences have been committed.
One of the most common claims against an impersonator is passing off. Where an individual misrepresents himself as a representative of a business, or his goods to be those of another company, then he commits the offence. The law applies to high profile individuals also, most famously when Eddie Irvine sued Talksport for falsely suggesting that he had endorsed their radio station.
It is also a civil offence to falsely claim that someone is the author of a literary, dramatic, musical or artistic work. It might seem to odd to think of a Facebook page or Twitter account as being included, however, in Moore v News of the World it was established that a false “exclusive” interview was covered. A Twitter account, which requires design to the layout and thought to the Tweets (the equivalent of answers to an interviewer’s questions) would almost certainly be covered also.
Impersonation is so often accompanied by fraud. Spoofing of email addresses (whereby your email address is impersonated in an effort to convince contacts to click on links or put themselves in similar online peril) is increasingly common.
This firm has seen examples of spoofing being used without financial fraud in mind. An email sent spoofing the email address of a high profile executive was sent with (apparently) the sole intention of impersonation and without any obvious fraudulent intent.
Even in the example above many of the civil offences mentioned may well apply, however, there have been calls (not yet heeded) to make spoofing on its own a criminal offence.
The Fraud Act 2006 makes it an offence to dishonestly make a false representation with the intention of making a gain or causing a loss. It is difficult to see how any kind of impersonation, no matter how odd, cannot have the intention of causing some kind of tangible gain or loss. Gain or loss must be loss of money or property. Loss to reputation can have incalculable damage in this regard.
Those who make it their business to fantasise, impersonate and attack online will need to be extremely careful. The Fraud Act carries sentences varying between 12 months and ten years.