Is Catfishing an Offence?
The term ‘catfishing’ has become common among internet users in the last few years. Catfishing refers to the act of luring someone to engage in an online relationship using a fake identity, often in order to extort money from them or obtain other advantages. While there is no specific criminal offence of catfishing in Australia, there are offences that are often committed after a person has been catfished. Opinions vary as to whether the act of catfishing, in the absence of financial motivations, could be prosecuted under existing criminal laws.
United States v Drew
One of the most widely publicised cases of catfishing was a 2007 Missouri case where a middle-aged woman catfished a 13-year-old girl who she thought had mistreated her daughter. The woman created a MySpace profile purporting to belong to a teenage boy and contacted the girl, starting a relationship with her. After a short period of talking and complimenting the girl, the woman ended the relationship, telling the young girl that the world would be a better place without her. The girl hung herself the same day.
In that case, prosecutors initially decided not to charge the woman as her actions were not motivated by financial gain and did not clearly amount to any particular offence. The following year, the woman was charged with four computer fraud offences. She was found guilty of the offences but these findings were overturned on appeal, with the court stating that Drew’s violations of the terms and conditions of MySpace were civil breaches of contract, rather than criminal offences.
Catfishing was also dealt with in findings made by the NSW Coroners Court in early 2020.
In early 2020, the NSW Coroner’s Court held an inquest into the death of 20-year-old Renae Marsden. The young woman committed suicide in 2013 after being dumped by a person she believed was a boyfriend called Jayden. She had been romantically involved with this person via texts and Facebook messages for a number of months. Unbeknownst to Renae Marsden, Jayden was, in fact, a fake persona that had been created and maintained by Marsden’s best friend, Camilla.
Camilla was not charged with any criminal offence, as there were no offences that reflected her actions. The Coroner did not make specific recommendations in respect of the introduction of criminal offences to deal with the type of catfishing Camilla had engaged in. However, he recommended that laws around coercive control and non-physical domestic and family violence in NSW be reviewed.
The Coroner’s decision was criticised by Deakin University academics Dr Marilyn McMahon and Paul McGorrery, who argued that a person who catfished in such a way could be charged under existing manslaughter laws.
Offences associated with catfishing
People who lure other people into online relationships often commit other offences against their victim. When this occurs, prosecuting them for the later offences may be straightforward, while the catfishing itself remains unaddressed.
Some of the offences that often flow from catfishing are:
Repeatedly contacting someone in a threatening or harassing manner, either online or offline, may amount to stalking, which is an offence under various laws in all Australian jurisdictions.
Requesting money using a false identity and/or for false reasons may amount to fraud, also known as obtaining a financial advantage by deception. Fraud is a criminal offence in all states and territories.
Using a carriage service to harass or offend
Where the internet is used to convey obscene material, to make threats or otherwise cause offence, the offender could be charged with using a carriage service to menace, harass, or cause offence under Commonwealth laws.
Where the victim of catfishing is under 16, numerous offences may apply, particularly where the internet is used to share sexual images or to set up a meeting with the child. These offences include:
- Possessing child abuse material;
- Using a carriage service for child abuse material;
- Using a carriage service to procure sexual activity with a person who the accused believed to be under 16
Is a specific offence needed?
The parents of Renae Marsden, and others in the Australian community, have called for a specific catfishing offence to be created. Others say that existing criminal laws are sufficient to prosecute most catfishers and that it would be difficult or impossible to legislate for situations that do not involve fraud or physical harm.
As catfishing breaches the terms and conditions of social media platforms, contacting the platform to have the offender’s profile removed is one way of addressing it.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.