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Is Catfishing An Offence?

Written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.

In the last few years, the term ‘catfishing’ has become common. It refers to the act of luring a person to engage in an online relationship through the use of a fake identity, often with the intention of extorting money from the other person or obtaining other advantages from the relationship. While there is no specific criminal offence that relates to catfishing in Australia, there are offences that are often committed after a person has been catfished. Opinions differ as to whether the act of catfishing, in the absence of financial motivations, could be prosecuted under existing criminal laws.

United States v Drew

Perhaps the most widely publicised instance of catfishing was a Missouri case from 2007 where a middle-aged woman, Lori Drew, catfished a 13-year-old girl who she believed had spread rumours about her daughter. The woman created a fake MySpace profile, purporting to be a teenage boy and contacted the girl, forming a relationship with her. After a short period of talking, flirting and complimenting the girl, Drew ended the relationship, telling the girl the world would be a better place without her. The girl hung herself the same day.

Prosecutors initially decided not to charge Drew as her actions, which were not motivated by financial gain, did not clearly amount to any particular criminal offence. The following year, Drew was charged with four computer fraud offences. She was convicted of the offences but these convictions were overturned on appeal, with the court finding that Drew’s violations of the terms and conditions of MySpace were civil breaches of contract, rather than criminal offences.

A more recent decision on catfishing was made by the NSW Coroners Court in relation to Renae Marsden early this year.

Renae Marsden

In February 2020, the NSW Coroner’s Court held an inquest into the death of 20-year-old Renae Marsden. Ms Marsden committed suicide in 2013 after being dumped by a person she believed was a boyfriend called Jayden, with whom she had been romantically involved via texts and Facebook messages for a number of months. Unbeknownst to Marsden, Jayden was a fabrication that had been created and maintained by her best friend, Camilla.

Camilla was not charged with any criminal offence, as there was no charge that encompassed her actions. The Coroner did not make any specific recommendations in respect of the introduction of criminal offences to deal with the type of catfishing Marsden had experienced. However, he recommended that NSW’s laws around coercive control and non-physical forms of domestic and family violence be reviewed.

The Coroner’s decision was criticised by Dr Marilyn McMahon and Paul McGorrery of Deakin University, who argued that a person who catfished in such a way could be charged with manslaughter under existing laws.

Offences associated with catfishing

People who lure other people into relationships online often commit other offences against their victim. When this occurs, it can be straightforward to prosecute them for the later offences, while the catfishing itself remains unaddressed.

Some of the offences that commonly flow from catfishing are:

Stalking

Repeatedly contacting someone in a way that is threatening or harassing, either online or offline, may amount to stalking, which is an offence in all Australian jurisdictions.

Fraud

Making requests for money using a false identity and/or for reasons that are false may amount to fraud, also known as obtaining a financial advantage by deception.

Using a carriage service to harass or offend

Where the internet or social media sites are used to convey obscene material, to make threats or otherwise cause offence, a person could be charged with the Commonwealth offence of using a carriage service to menace, harass, or cause offence.

Children

Where the victim of catfishing is under 16, there are numerous offences that may apply, particularly where the internet is used to share sexual images, or to solicit a meeting with a child. These include:

Is a specific offence needed?

The parents of Renae Marsden, and others in the community, are calling for a specific offence to be created to deal with catfishing. Others say that existing criminal laws are sufficient to prosecute the majority of catfishers and that it would be difficult or impossible to legislate for situations where no fraud or physical harm is attempted.

As catfishing contravenes the terms and conditions of social media platforms and dating sites, contacting the platform to have the offender’s profile suspended is one way of addressing this behaviour.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

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