Sex

We Asked an Expert If You Can Really Make Catfishing Illegal

A British woman is calling on the government to criminalize catfishing—but is she going to have any luck?
February 24, 2017, 7:00am

(Top image: Screen shot from the trailer for 'Catfish' / Universal Pictures)

Since the early days of the internet, people have been tricked into falling in love with someone who turns out to be someone else entirely. Whether it's through dating sites, Tinder or Neopets, it turns out it's very easy to set up a profile with a photo you've found online, before stringing along some poor person looking for love. A term for this, "catfish", was coined and popularized in 2010 by Nev Schulman—director of the documentary Catfish and creator of a subsequent TV series, also named Catfish—and since then catfishing cases have seemingly popped up every day.

Canterbury woman Anna Rowe is the latest high profile victim. She says she was lured into a 14-month relationship with a married father and is now demanding a change in the law to make catfishing illegal. Anna is "heartbroken" after learning that someone she had spent months investing in both online and IRL lied about his life, was actually a giant cheat and was using a photo of a Bollywood actor for his Tinder profile. Unlike most catfish victims, Anna spent several nights a week with "Antony," but didn't realize that he wasn't quite who he said he was, and is now calling on Theresa May, via a petition, to change the law and make catfishing a crime.

But is that possible? And is what happened to Anna even catfishing, considering her and "Antony" spent so much time together? I asked Zarek Rahman, a technology lawyer, to answer all of my burning questions.

VICE: Hi Zarek. Legally, does what happened to Anna count as "catfishing"?
Zarek Rahman: Catfishing is not a legally defined term in the UK. The term usually refers to situations where a person creates a fake social media profile in extreme detail using pictures of a totally different person in order to carry out online relationships with other unsuspecting social media users. Since Miss Rowe and "Antony" actually met on several occasions before he disappeared—and she hired a private investigator who eventually found out that he was actually married while seeing her—it seems that this was really a case of a cheating husband and a naive woman. Nothing new there.

Would it be legally possible to make what she's asking for happen?
Miss Rowe is asking for a new law to be passed which would criminalize the creation of a fake online profile with the intent to use that profile to obtain sex. That's unlikely to happen, as the House of Lords have already conducted a thorough inquiry into social media and criminal offences in 2014, coming to the conclusion that "criminal law in this area, almost entirely enacted before the invention of social media, is generally appropriate for the prosecution of offences committed using social media." Furthermore, the European Convention on Human Rights provide that every person—including "Antony"—has the right to freedom of expression, and so any proposed law which attempts to limit this is unlikely to be passed.

"Simply dragging the picture of 'Antony' into Google's search by image tool would have quickly made it clear to Miss Rowe that it was actually a photo of Bollywood star Saif Ali Khan."

Is there any precedent? Does she have any other legal options?
Not for what she has experienced, although there is legislation and guidance in place for other crimes that can be committed over social media. The Crown Prosecution Service (CPS) has categorized four different types of communications as criminal offences. One: Communications which constitute threats of violence to a person or damage to property. Two: Communications which specifically target an individual or individuals and which may constitute harassment or stalking, controlling or coercive behaviour, disclosing private sexual images without consent. Three: communications which may amount to a breach of a court order or a statutory prohibition, and four: communications which do not fall into any of the categories above fall to be considered separately, i.e. those which may be considered grossly offensive, indecent, obscene or false.

For example, the Protection of Harassment Act 1997 applies equally to bullying that takes place on and offline, while the Malicious Communications Act 1988 makes it an offence to send a "grossly offensive" communication that has the purpose of causing distress or anxiety. Most recently, the Criminal Justice and Courts Act 2015 made the posting of revenge porn an offence, so if Miss Rowe had sent "Antony" a private sexual photo or film which he then made public without her consent and with the intention to cause her distress, that would be a criminal offence. If she could identify "Antony" in real life, and if she can demonstrate that she suffered an actual financial loss on her part or he made an actual financial gain on his part as a result of his actions, this may constitute an offence under the Fraud Act 2006. Whether the CPS would ever actually pursue such a case is questionable.

Say a law was established, how do you think it would be enforced?
If such a law was passed, the crime would need to be reported to the police, who would then decide whether the case is worth pursuing. If so – and if there is sufficient evidence available—the CPS would prosecute the case. I'll leave it to you to assess how many of these cases would actually make it to trial.

What options do people currently have to protect themselves in cases like this?
Act with vigilance and caution online. Fake social media profiles are rarely flawless. There are a number of tools available online which can be used to check if someone is genuine; for example, simply dragging the picture of "Antony" into Google's search by image tool would have quickly made it clear to Miss Rowe that it was actually a photo of Bollywood star Saif Ali Khan. As with most things in life, common sense should prevail.

Have you ever dealt with a catfishing case yourself?
I don't advise individuals who have been victims of catfish cases, but I do advise startups and technology companies which operate social media platforms. One of the key ways for a platform to protect itself from any liability is to make it very clear that they take no responsibility for what users post, but at the same time if an account is clearly fake, has posted abusive or offensive material and is reported, the platform will usually respond quickly by disabling the account, but it's extremely unlikely that either the platform—or the owner of the fake account—is going to have any liability to you for any loss or emotional distress you've suffered as a result of using their service.

@marianne_eloise

More on VICE:

Someone's Been Using My Facebook Photos to 'Catfish' People for Nearly a Decade

Confessions of a Teenage Catfishing Addict

The VICE Interview: Nev Schulman from MTV's 'Catfish'