Hook, Line and Sinker: Proposals to Make Catfishing Illegal

‘Catfishing’ can be defined as the process of luring someone into a relationship by means of a fictional online persona, often by creating a fake social media profile using a third parties profile pictures.

It has been the subject of many tv shows and podcasts over recent years. While many tales have been used as fodder for light entertainment there is a sinister side to this activity, and there are two victims to consider – the person being catfished, and the third party whose pictures have been used. Currently, the use of someone else’s profile photograph/ image without their knowledge or consent, for the purposes of deliberately misleading another person is not subject to criminal sanction.

In this article Clare Daly, Solicitor and Anna McCormack, Intern, discuss the recent proposal to make catfishing illegal, and the significant changes in legislation to tackle online harms such as intimate image abuse and harassment online.

The Law

Online Safety and Media Regulation Bill 2020

In recent years, the Online Safety and Media Regulation Bill 2020 was introduced in order to tackle ‘harmful content’ online and create an Online Safety Commission. The new Commission will be tasked with handling individual complaints about online content that could harm children and other vulnerable groups. It is proposed, the Commission will also regulate and remove harmful and illegal content, such as gratuitous violence or content encouraging suicide. If catfishing were made illegal, it may be possible to empower the Commission to remove false accounts where they are reported.

Harassment and Harmful and Communications Act 2020

The Harassment and Harmful Communications Act 2020 was introduced to criminalise publishing, distributing, or threatening to publish intimate images of another person without their consent. This addressed a gap in the Non-Fatal Offences against the Person Act 1997 where single instances of image-based sexual abuse did not fulfil the criteria for harassment, as it was not ‘persistent’ under the Act.

The 2020 Act may help some victims of catfishing who experience image-based sexual abuse, but it does not address more general effects of catfishing on victims.

Criminal Justice (Theft and Fraud Offences) Act, 2001

In some cases, the person who has been catfished may be asked to send money or bank account details as part of the fictional relationship – a scam now often termed “romance fraud”. These scams may fall under s. 6 of the Criminal Justice (Theft and Fraud Offences) Act, which prohibits dishonestly inducing others to act with the intention of making a gain for himself or another or causing a loss to another.

Senator Chambers’ Proposal to Prohibit Catfishing

Fianna Fáil senator Lisa Chambers had her own pictures stolen online and used for a dating app. She recently proposed to amend the Non-Fatal Offences Against the Person Act to prohibit catfishing, saying she was working on a bill that would ban such online dating frauds. She says: “The online space allows people to do this because they can just take your photos off your profile and do whatever they want”. She emphasised that it was important to view the issue from the point of view of both victims: the person who has had their identity or photos used, and the person who has been catfished.

International calls to criminalise catfishing

In a recent high-profile case of catfishing in Australia, Renae Marsden took her life after being catfished online for almost two years by a close friend. The coroner described the conduct that led up to her death as “appalling” but found no offence had been committed. This led to calls from Marsden’s parents to criminalise catfishing. The coroner also recommended examining a possible new offence of coercive control, which may extend to include some aspects of catfishing, such as emotional manipulation. Many states and territories of Australia are now considering legislation for such an offence.¹

Conclusion

There is lots of scope to criminalise catfishing in Ireland. For example, it may be possible to examine a possible expansion of Ireland’s offence of coercive control under s. 39 of the Domestic Violence Act 2018 to include aspects of catfishing. It is evident that there is a gap in current legislation, and whilst there has been some progress in recent years, there is still a way to go.

¹What is Coercive Control and is it Illegal? | Gilshenan & Luton QLD (gnl.com.au)