By: Cameron Cantrell
Most people on the Internet have heard of “catfishing,” or the act of deceiving someone by creating a false personal profile online, and its namesake 2010 documentary and subsequent MTV show. While the movie and show mostly document standard catfishing—where the perpetrator poses as a fictional person for romantic gain rather than to further a scam or fraud—the cases of malicious catfishing get more media attention. The difference between standard and malicious catfishing is not some legal term of art, but rather a reflection of the intent of the perpetrator. Malicious catfishers deceive their victims to further an immoral end, often monetary exploitation or other long-con “romance” scams (in season 5 of the MTV show, one catfisher said the charade was a “game” to him, after his victim sent him over $500). The direct victims of malicious catfishing can usually find some legal ground to sue, but what about the unknowing third party whose pictures or likeness the catfisher relied on? Unfortunately, states almost unilaterally leave the “catfish bait”—the person whose likeness a catfisher appropriates—without legal remedy.
Existing laws rarely protect these third-party victims of malicious catfishing
The regular lineup of privacy torts, such as false light, defamation, and right of publicity, do not protect the catfish bait if the catfish’s persona is fictitious. For catfish bait to take advantage of their remedies, the catfisher would have to use the catfish bait’s face and name, or some other combination of identifiers that makes it clear they are pretending to be that specific person. The same is true for the twelve or so states that criminalize impersonating someone online, because they require the catfisher impersonate an “actual person.” Noting this statutory void, some legal articles have tried sewing together a patchwork of civil and criminal offenses (intentional infliction of emotional distress and cyberbullying, for example) to provide some relief. Even these hopeful academics, however, acknowledge that the mosaic of existing laws comes up short because current laws can’t be read to allow catfish bait sue catfishes for using their likeness in “completely fictitious profile[s].” This is frustrating for prospective plaintiffs given that most situations people would describe as “catfishing” involve fictitious personas, not outright impersonation.
Say that you are the catfish bait, and a catfisher uses your picture as their own on social media. Some websites like Twitter and Tinder let you report the profile on those grounds, but a federal law known as “section 230” prevents guaranteed action. In the case the platform does remove the profile, however, the clever catfisher may move to another website or remake their account, and resume using your likeness. In the 49 states without a legal framework for this type of “fictitious” catfishing, there’s no meaningful incentive to keep this catfisher from habitually using your likeness again, and again, and again.
Only one state protects “faces” of fictitious personas
Oklahoma’s Catfishing Liability Act of 2016 creates a private right of action for “catfish bait” (those whose names, images, or voices are being used to “create a false identity” online). It is the only state law of its kind. Through it, plaintiffs in Oklahoma can obtain preliminary injunctions against an alleged catfisher, forcing the catfisher to stop using their likeness. If they win, plaintiffs can get actual damages as well as at least $500 and court costs in punitive damages. This law is perfectly tailored to the harms a catfisher can cause to “catfish bait” because it recognizes that some catfishing—and some catfishers—wreak more havoc than others (for example, the person who uses another’s likeness to talk to 400 people may have caused more harm than the person catfishing an acquaintance out of insecurity or ignorant boredom). Accordingly, it awards punitive damages as a general deterrent for all catfishing and actual damages as an additional deterrent for especially undesirable catfishing, such as that done by high-profile or prolific catfishes.
More states should follow Oklahoma’s lead
While many population-dense, torts-focused states like California, Texas, and New York make it illegal for a catfisher to use another’s picture to impersonate that specific person, Oklahoma is the only state that outlaws using another’s picture to become someone new. Curiously, even with catfishing’s notoriety in popular culture, there doesn’t seem to be any public opposition to laws like Oklahoma’s, nor any demonstrated political support. Yet catfishing is an increasingly common practice over the last decade, and is likely going to become even more frequent in years to come. With plenty of evidence that catfishing presents a growing problem, do legislatures really view redress for catfish bait as that low of a priority?
It seems like the only possible answer is yes; to date, only one other state has introduced substantially similar legislation, and it didn’t receive lively discussion. That state, Wisconsin, got its comparable bill easily out of committee in 2017 but never scheduled it for floor discussion. After being reintroduced in their next legislative session, it again died from neglect, this time in committee.
The question of “why not” remains, with the argument to legislate buttressed by airtight reasoning. The problem is growing, the harms are undue, the legislation is simple, the statute does not require funding, the policy it embodies is reasonable, and the penalties it carries are moderate at best. What else could other states’ legislatures possibly be waiting for?
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