Is Catfishing Illegal?

Using the internet to meet new friends, set up potential dates, hook up sexual liaisons or seek out a life partner is a worldwide phenomenon.

For the most part, users of online social platforms can rely on the profiles of others to get a rough idea of who they are and what they look like – knowing the other person is likely to be displaying their ‘best side’.

But this is certainly not always the case. Sadly, there are people out there with ulterior motives to prey upon lonely individuals who are desperate to find true love, or even just companionship.

What is Catfishing?

Catfishing is the act of luring others into relationships by creating fictional online personas.

Catfishers may do this to increase their chance of sparking an online relationship or having their target agree to meet up, to extract financial or other material benefits from their hapless victims, or even to groom underage persons for sexual purposes.

And while catfishing is generally considered to be immoral, it does not always amount to an offence.

When is catfishing illegal?

However, certain forms of catfishing activity can contravene criminal laws relating to fraud or against procuring, grooming or preparing or planning to engage in sexual activity with underage persons.

Fraud

Section 192E of the Crimes Act 1900 (NSW) provides that a person who, by any deception, dishonestly obtains property belonging to another, or obtains any financial advantage or causes any financial disadvantage, is guilty of fraud.

The maximum penalty is ten years’ imprisonment if the matter is taken up to the District Court, or two years if it remains in the Local Court.

For the offence to be established, the prosecution must prove each of the following ‘elements’ (or ingredients) beyond reasonable doubt:

• By deception, the defendant acted dishonestly, and
• These actions created a financial advantage over another person’s property, or caused them to suffer a financial disadvantage, and
• The actions were intentional or reckless.

There have been a number of recent cases where the higher courts have found that despite establishing dishonesty, the prosecution was unable to prove the necessary element of ‘deception’ to the requisite standard.

The cases have outlined the requirements of that essential element, and have made it easier to have fraud charges withdrawn for lack of evidence or thrown out of court.

Catfisher Convicted in Canberra

That said, it has been reported that a Canberra woman pleaded guilty in the ACT Magistrates Court last month to defrauding ten men of $300,000 between 2011 and 2017 by luring them through a fake profile on a dating app.

26-year old Crystal-Lee Lancaster admitted using photos stolen from a UK woman’s Instagram account to lure men to her ‘Plenty of Fish’ dating profile, and to tricking each of them into believing they were involved in a relationship with her.

Once they were hooked, Ms Lancaster falsely told them she suffered from various severe health problems in order to persuade them to deposit funds into her bank account.

She told some of the men that she was hospitalised with liver cancer and required funds for chemotherapy, extracting $60,000 from one of them and $135,000 from another.

The matter has been adjourned for sentencing.

Procuring or Grooming

Even more serious is where the catfisher’s intention is to encourage children to engage in sexual activity.

Section 66EB of the Crimes Act criminalises the acts of intentionally ‘procuring’ and ‘grooming’ children under the age of 16 for unlawful sexual activity.

Subsection (2) contains the offence of ‘procuring’, which requires the prosecution to prove beyond reasonable doubt that an adult intended to encourage, entice, recruit or induce a child under 16 to engage in unlawful sexual activity.

In the context of catfishing, the prosecution must negative any reasonable possibility that, through the fake online persona, the defendant had another intention – such as creating and maintaining a non-sexual relationship – despite the existence of sexualised communications.

The maximum penalty for the offence is 12 years’ imprisonment, or 15 years if the child is under 14.

Subsection (3) criminalises ‘grooming’, which is where an adult engages in conduct that exposes a child to indecent material or provides a child with an intoxicating substance, and does so with the intention of making it easier to procure the child for unlawful sexual activity.

The maximum penalty is 10 years’ in prison, or 12 years if the child is under 14.

The difficulties in proving ‘intent’ quickly led to calls for a law which captures a wider range of conduct.

Carly’s law

This push was boosted by the tragic murder of 15-year old Carly Ryan.

The teen was the victim of 47-year old Gary Newman – who created more than 200 fake online profiles of young men to prey on underage girls.

Newman used such a profile to connect and form an online relationship with Carly. He met up with the teen in February 2007, when he assaulted, suffocated and drowned her.

Newman was found guilty of murder and sentenced to 29 years’ imprisonment.

Carly’s mother, Sonya Ryan, established a foundation which ultimately led the federal government to enact ‘Carly’s law’ which is embodied in section 474.25C of the Criminal Code Act 1995 (Cth).

The section prescribes a maximum penalty of 10 years’ imprisonment for any adult who uses a carriage service, such as the internet or a phone, to undertake “any act in preparation for doing, or planning to do, any of the following” towards a person under 16 years of age:

• causing harm;
• engaging in sexual activity; or
• procuring sexual activity.

Given the breadth of the law, legitimate concerns have been expressed that they may be unfairly applied to intellectually disabled or developmentally delayed persons, or those who are not ‘up-to-scratch’ on social norms, or to other adults who communicate with young people without meaning any “harm”.

“You can have all kinds of situations arise which are not criminal, which do not result in harm to the person to whom the representations made, and I think that’s really what the major problem is with this,” said former NSW Director of Public Prosecutions Nicholas Cowdery.

“Police always want more power,” he added. “They may have the best intentions but if you give greatly enlarged powers to police officers and law enforcement then there are going to be unintended consequences of that too.”

Senator Nick Xenophon conceded that these concerns are “fair enough”, but asserted that the benefits outweigh the risks.