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.
Misuse of private information
If a fake profile contains private information about the person, for example, their relationship status, sexual orientation, religious views, political views or other disclosure of private information, it may amount to the tort of misuse of private information.
In Applause Store Productions Limited Mathew Firsht v Grant Raphael (2008), Mathew Firsht was awarded £2,000 for breach of privacy when his former friend and business associate, 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.
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 them to hatred, contempt or ridicule or causes themto 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 from which the defamatory statement was made.
Fraudulent impersonation and deceit
Impersonation for fraudulent reasons, for instance, to obtain money, goods or services will amount to criminal activity under the Fraud Act 2006 (FA 2006) for which the impersonator could face prosecution through the criminal courts for the offence of fraud or a similar type of offence. FA 2006 carries prison sentences varying between 12 months and ten years.
Under the tort of deceit, a civil wrong occurs where a person makes a false statement, which they know 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. The injured party can claim damages for any loss caused.
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 copies and uses a photograph from another Facebook profile, the copyright owner will have a claim against the impersonator for infringement of the copyright in that photo.
Trademarks and passing off
The name of a business or, in some cases the name of an individual, can be protected as a trademark. To register a name as a trademark, the name must be capable of distinguishing goods or services of an undertaking from those of other undertakings and there must be sufficient goodwill attached to the name. If a trademark is infringed, the injured party can seek an injunction to stop the infringement as well as damages.
The tort of “passing off” can be used to enforce unregistered trademark rights.
This operates by protecting the goodwill 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 makes out that his goods or services are 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.