A California bill, SB 1411, would criminalize online impersonation, i.e. impersonating another actual person on the Internet. It would become a misdemeanor to knowingly and without consent credibly impersonating another actual person on the Internet, or other electronic means, in order to harm, intimidate, threaten, or defraud another person.
California State Senator Joe Simitian, who sponsors the bill, stated that “the victims of …harassment and defamation as a result of false impersonation perpetrated through the Internet are typically left without adequate legal protection to stop this abuse.”
Is it really the case? California already criminalizes false personation, in section 529 and section 530 of the California Penal Code.
It is already a crime in California, since 1872, to falsely personate another in either his private or official capacity and doing any act which may benefit the impersonator (§ 529 of the California Penal Code). A fact sheet on SB 1411 issued by the office of Senator Simitian notes that the law was written in 1872 “without the modern technologies of today in mind.” Well, sure, but does that necessarily mean that current California law is powerless at protecting someone who would be impersonated on the Internet?
§ 529 of the California Penal Code:
Every person who falsely personates another in either his private or official capacity, and in such assumed character either:
1. Becomes bail or surety for any party in any proceeding whatever, before any court or officer authorized to take such bail or surety;
2. Verifies, publishes, acknowledges, or proves, in the name of another person, any written instrument, with intent that the same may be recorded, delivered, or used as true; or,
3. Does any other act whereby, if done by the person falsely personated, he might, in any event, become liable to any suit or prosecution, or to pay any sum of money, or to incur any charge, forfeiture, or penalty, or whereby any benefit might accrue to the party personating, or to any other person;
Is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.
Just as SB1411, § 529 only makes it a crime to impersonate a real person, but does not make it a crime to impersonate a fictitious person. (People v. Robertson, 273 Cal. Rptr. 209, Cal. App. 1 Dist. 1990). However, it is a crime to impersonate a dead person. (Lee v. Superior Court, 989 P.2d 1277 Cal. 2000).
Since the bill specifically aims at protecting victims of online impersonation, it would have been interesting to also criminalize impersonating a fictitious character. Why? In Lee, the Supreme Court of California had explained that “statutes prohibiting impersonation have two purposes. One is to prevent harm to the person falsely represented; the second is to ensure the integrity of judicial and governmental processes.”(Lee v. Superior Court, at 1279). However, there is also a potential third victim, the person who fell victim to the ruse. S B 1411 would only protect the person whose identity is used, not the victim who is duped by the online impersonation, and that person is also often harmed, intimidated, threatened, or defrauded by the online impersonator.
Instead of “expanding the current impersonation statute to include impersonation done on an Internet Web site or through other electronic means such as email, Facebook, Twitter, and other social media websites,” it would have been more innovative, and more protective of the interests of Internet fraud and cyberbullying to include impersonation of a fictitious person.
However, if enacted, the bill would help a person whose name has been used on the Internet to defraud someone else. This person would be able to bring a civil action against the impersonator for compensatory damages and injunctive or equitable relief.