The mere act of impersonating another person is unlikely to be unlawful except in situations where the law specifically provides. For example it is a criminal offence to impersonate a police officer.
However, where the impersonation is accompanied by certain other acts or certain other factors are present the impersonator may commit a criminal offence or a civil wrong depending upon the circumstances of the case.
This articles looks at some of the main areas of law which may arise out of the impersonation of another.
Misuse of private information
In 2008 Mathew Firsht was awarded £2,000 for breach of privacy when a former friend and business associate of his, Grant Raphael, created a profile on Facebook for Mr Firsht without his consent. The profile contained certain private information about Mr Firsht including his sexual orientation, relationship status, birthday and political and religious views. Not all of the information was accurate but the Court in that case held that all of it was information in which Mr Firsht had a legitimate expectation of privacy. The Court held that the creation of the false profile amounted to a misuse of private information.
The question as to whether the creation of a profile which contains no personal information would be unlawful was not dealt with in the judgment. It is, however, doubtful that it would be.
In Mr Firsht’s case a claim was also brought for defamation as the false profile and a group, also created by Mr Raphael, called “Has Mathew Firsht lied to you?” contained defamatory statements about Mr Firsht and his company. Mr Firsht and his company were awarded damages totalling £20,000 for the defamation.
A statement is said to be defamatory if it tends to lower a person in the estimation of right-thinking members of society generally or it exposes him to hatred, contempt or ridicule or causes him to be shunned or avoided.
Defamation on the internet has become an increasing problem over recent years. Mr Firsht’s case serves as a reminder of the importance of ensuring the accuracy of statements made not only on Facebook but in emails, chat rooms and the like. Where a person has been defamed it is open to them to apply to the Court for an order requiring, for example, Facebook or an Internet Service Provider to provide information relating to the defamation, including the IP address of the computer on which the defamatory statement was made.
Fraudulent impersonation and deceit
Impersonation for fraudulent reasons, for example, to obtain money, goods or services will amount to criminal activity for which the impersonator could face prosecution through the Criminal Courts for the offence of fraud or a similar type of offence.
Under the tort of deceit, a civil wrong occurs where a person makes a false statement, which he knows to be false or is reckless as to the truth of the statement, there is an intention to deceive and the person to whom the false statement is made relies on it to their detriment and suffers loss as a consequence.
As a general rule a person who has taken a photograph owns the copyright in that photograph. This means that it cannot be lawfully reproduced without that person’s permission or licence. Where, therefore, a person impersonates another on Facebook and in doing so, for example, “copies and pastes” a photograph from another Facebook profile, the copyright owner will have a claim against the impersonator for infringement of the copyright in that photo.
Impersonating a business
The name of a business or, in some cases the name of an individual, can be protected as a trade mark. In order to register a name as a trade mark the name must be capable of distinguishing goods or services of an undertaking from those of other undertakings and there must be sufficient good will attached to the name.
Where a name is protected in this manner and another person or business uses the same name they may be subject to a claim, bought under the tort of “passing off”, for infringement of the trade mark.
The tort of “passing off” can be used to enforce unregistered trademark rights. It operates by protecting the goodwill (the business) of a trader from a misrepresentation that causes damage to that goodwill. It does this by making it a civil wrong for a person to misrepresent his goods or services as being the goods or services of another or where a person holds out his goods or services as being associated or connected with another.
The law of passing off is also used by celebrities where their image is used to endorse a product without their permission and where they have a significant reputation or goodwill attached to their image.