Clear v. Superior Court, 2010 WL 2029016 (Cal.App. 4 Dist. May 24, 2010)
The California Court of Appeal has held that a man who set up a bogus MySpace profile of his former church pastor can stand trial for criminal “personation.”
The defendant’s alleged conduct that might really put him on the hook is what he did after setting up the profile: he posted content that suggested the pastor used drugs and was gay. Because this could have resulted in the pastor losing his job, the court found the statute prohibiting personation of another might have been violated (that question will be resolved at trial unless there’s a plea deal).
The criminal personation statute (Penal Code Sec. 529) has an intriguing framework for liability. Apparently it’s not enough just to say you’re someone else. To be liable you’ve got to actually do something while assuming that persona that would subject your target to some kind of legal harm.
For example, just saying to the cops that you’re someone else, that you have that persons birthday and even responding affirmatively to whether you have their middle name apparently isn’t enough to violate the statute. People v. Cole, 23 Cal.App.4th 1672 (1994).
But using your sister’s name when you get a traffic ticket and also forging her signature on the citation isn’t allowed. People v. Chardon, 77 Cal.App.4th 205 (1999).
All the reason not to set up that Facebook profile of your boss and populate it with tales of drugs and other shenanigans.
Image by Balakov under this Creative Commons license.
4 Comments
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June 1, 2010
Why would someone do this? Well, I understand that people can be petty and vindictive. But don’t they know that this can cause serious harm to the people they’re writing about? Also, why is it “personation” and not “impersonation?”
June 1, 2010
The prosecution will have a hard time proving the personation charge. They will have to demonstrate that something the defendant posted would subject the pastor to something like a defamation suit if it had been done by the pastor.
“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;”
The court also seemed to suggest that he could have been terminated from his position if he had said those things. But I don’t see how that could qualify as a “charge, forfeiture, or penalty”. Since the law doesn’t require any particular likelihood, allowing private discretionary actions to qualify as a “harm” would broaden the statute massively.
(What comment doesn’t meet the “might, in any event incur any penalty” test if penalty can include discretionary actions by private parties?)
June 2, 2010
Wow, what a curious thing. I can understand why this would cause damage – and why 8-529, et seq. make sense.
Lately (slightly tangentially) I’ve been wondering when/if we’d see this statute applied to situations where the “person” in the profile doesn’t really exist – where it’s a completely fictional character. While most such profiles are used harmlessly, a few have been used to do – or to facilitate – physical or emotional harm to others.
In those cases, can it be “personation” if the “person” isn’t real? I expect someday soon, we’ll see a prosecutor say “yes.”
June 3, 2010
What if the profile that was set up exposes a truth? E.g. the extraordinary caring and honest woman who promised to share expenses whilst living in my home. When she had plenty enough income she pretended to do the necessary bookkeeping, but then split whilst falsely accusing me of violence towards her. She got just what she wanted, some $50,000, which is just the level that even if I won the court case, only the lawyers would benefit.
Justice should not let such people “get away with it”, getting away with it is precisely what any criminal hopes to achieve. Though it is vigilante justice, exposing her on a FaceBook profile using her full name and several pictures is justice…the system should not be so indifferent, and it is getting a lot worse.