Facebook is home to over 1.28 billion active users a month. However, not everyone on Facebook is who they claim to be.
Facebook estimated that in 2013 between 5.5% and 11.2 % of the accounts on its website were fake, easily putting the exact number in the millions.
Roughly 1.2% of these fake accounts were in violation of Facebook’s rules. This category of fake accounts includes those where someone intentionally used another’s pictures, name, or likeness to interact with other Facebook users online. These fake accounts are known as “catfish.”
In recent years, “catfish” has quickly become part of every day speech thanks to the film and television show of the same name. The term has even earned itself a spot in the Merriam-Webster dictionary.
The online persona of a catfish serves a variety of lifestyle needs. A fake profile can provide a means of escapism from the day-to-day grind and a way to feed off the attention that a pretty face gets on the Internet. Others use catfishing as a means to adopt a different gender and enter into online relationships that they would otherwise be ostracized for in their community. However, catfishing at its worst can be for far more malicious purposes, including revenge and ruining another person’s reputation.
Catfish do not use their own likeness, in whole or part, when creating fake accounts. The premise is simple: if you are going to pretend to be someone else online, you aren’t going to use your own face. When looking for a new face, catfish search the Internet for long-forgotten images to claim and misrepresent as their own. Defunct Myspace profiles are prime picking, but so are cached, deactivated Tumblr pages. These activities form the backbone of catfishing and can give rise to a viable invasion of privacy claim in Colorado against the catfish called “misappropriation of likeness.”
Misappropriation of Likeness in Colorado
Misappropriation of likeness occurs when another person uses your name or likeness for their own purposes or benefit, causing you to suffer damages as a result of their action. Joe Dickerson & Associates, LLC v. Dittmar, 34 P.3d 995 (Colo. 2001). A claim for misappropriation of name or likeness protects against unwanted publicity, but not a right to the commercial value of your name or identity. Id. at 1000.
The Colorado Supreme Court first recognized the tort of misappropriation of likeness in Joe Dickerson & Associates, LLC v. Dittmar. Id. The case involved a newsletter called “The Dickerson Report” that served as a sort of expose on financial fraud investigations in Colorado. Id. at 998. One edition of “The Dickerson Report” contained a front-page article on a secretary at a brokerage firm (along with her picture) and detailed how she stole a customer’s bearer bonds from her place of employment and cashed them for personal use. Id. at 998.
The Court acknowledged that “The Dickerson Report” used the secretary’s name and likeness without her permission, and gave rise to a viable claim for misappropriation of likeness. In coming to its ruling, the Court found that a plaintiff whose identity had no commercial value might still experience mental anguish based on an unauthorized use of her name and likeness. Id. However, the Court ultimately did not rule in the secretary’s favor. The Court found that “The Dickerson Report” was protected under the First Amendment because it was a “newsworthy” publication that was not “predominately commercial.” Id. at 1003.
Catfishing as Misappropriation of Likeness in Colorado
Although no court in Colorado has heard a “catfish” case as of the date of this publication, catfishing by a resident of Colorado or with a resident of Colorado’s name or likeness may give rise to a viable misappropriation of likeness claim. One situation that might create a viable claim would be where someone has created an account using another person’s image that they know without their authorization and presenting themselves as that person online with the intent to exact revenge or some other form of reputational harm. Publicly making crass, or sexually explicit posts, while knowing (or being aware of a high risk) that people in the victim’s community will see these posts could generate substantial damages and justify litigation.
Another viable claim could arise from far less malicious intentions when a catfish uses the identity of another person to enter into an online relationship. While many catfish use fake profiles to attract the attention of the same or opposite sex, doing so can cause substantial reputational harm and emotional distress to the victim. Not only does a victim already in a relationship run the risk of appearing as a “cheater,” but also the emotional distress that comes with having to explain to a significant other that the Facebook profile bearing their picture and stating they are in a relationship is not a front for an affair or other infidelity.
Situations where a catfish pretends to be a public figure or celebrity on Facebook are trickier though. If satirical in nature, or a parody, then the fake account is protected under the First Amendment so long as the Facebook page is not “predominately commercial.” Id. at 1003. However, a court would likely be hard-pressed to find that a fake profile of a public figure or celebrity is in itself “newsworthy” or involving a “matter of public concern” not of the catfish’s making.
Recourse and Damages in Colorado for Victims of Catfishing
People in Colorado who have had their name or identity used by a catfish, as well as victims of a catfish residing in Colorado, may be able to recover personal damages. Again, victims do not have to prove the commercial value of their name or likeness. Id. at 1002. In addition to compensation for losing a job or opportunities because of a catfish, personal damages can include mental anguish, harm to reputation, and injured feelings. Id. at 999. Victims of catfishing not only experience the dignitary harm of someone parading around as them on the Internet, but also the very real emotional distress and risk of walking down the street and having someone mistake them for the catfish. The same victims also have to explain themselves to their friends, families, and co-workers if an account is found, and somehow manage to prove that the fake profile and its representations are not their own.
Injunctive relief may also be available to victims of catfishing to stop the misappropriation either temporarily or permanently. See C.R.C.P. 65 (2013). Victims may file for a temporary restraining order, and then seek a preliminary injunction. Preliminary injunctions are an extraordinary remedy designed to protect a plaintiff from irreparable injury and to preserve the power of the court to render a meaningful decision following trial. Rathke v. MacFarlane, 648 P.2d 648, 651 (Colo. 1982). In addition to showing that immediate irreparable injury will occur without injunctive relief, the victim must also demonstrate to the court that there is no plain, speedy, and adequate remedy at law, and that there would be a reasonable probability of success on the merits of the case at trial. Rathke, 648 P.2d at 650. Should the court rule in favor of the catfishing victim at trial, the preliminary injunction can be made permanent.
Victims of catfishing can also request punitive damages from a jury if there is evidence beyond a reasonable doubt that the catfish’s conduct was fraudulent, malicious, or willful and wanton. See Colo. Rev. Stat. §13-21-102(1)(a) (2013). Punitive damages are awarded to punish the defendant, and to serve as an example to others. Giampapa v. American Family Mut. Ins. Co., 64 P.3d 230, 241 (Colo. 2003). If the catfish was conscious of their conduct and the existing conditions, and knew or should have known the injury would result, then punitive damages are appropriate. Id. at 244. For example, if you reach out to the catfish on Facebook to take down their account and they refuse, then their conduct would likely be found willful and wanton to justify punitive damages.
Catfishing, malicious in nature or not, risks invading the privacy of others and giving rise to a viable claim for misappropriation in Colorado. Although catching a “catfish” and protecting your privacy rights may seem difficult, Google Chrome and other browsers now allow you to run a search on nearly any image to see where it has been posted (including defunct Myspace profiles or fake Facebook accounts). Should you discover a catfish using your identity, it is important not to dismiss the fake account. While you do have a right to protect your privacy interests, the statute of limitations to bring a claim against the offending catfish starts ticking the moment you discover the catfish or from the date they created their fake Facebook account.
By Cassandra Kirsch, HopkinsWay PLLC. | © HopkinsWay PLLC 2014. All rights reserved.