Grace Robinson 5 min read
Is catfishing a criminal offence? And what is ‘catfishing’?
Catfishing is when an individual fraudulently takes on a fake identity on social media to control and abuse their victim. The catfisher might be carrying out the deception for money or sexual gratification. Alternatively, the catfisher may be motivated by the feeling of control and power.
For a particularly striking example of what catfishing is, listen to Alexi Monstrous’s six-part podcast series, ‘Sweet Bobby’, for Tortoise Media. The following account is a summary of Mr Monstrous’s findings and Ms Assi’s allegations. Simran Bhogal, having stolen the identity of a real person called ‘Bobby’, deceived Kirat Assi for nine years. Ms Assi believed she had been in an emotional and intimate relationship with ‘Bobby’.
Ms Bhogal, it is alleged, went to great lengths to maintain the illusion. She created fake social media characters to correspond with Ms Assi about her relationship with ‘Bobby’. She impersonated ‘Bobby’ and other characters both via online messenger apps and during phone calls. Ms Bhogal invented illnesses and other ruses to prevent Ms Assi from meeting ‘Bobby’. When Ms Assi, despairing at her state of limbo, attempted to cut off the relationship, Ms Bhogal would invent another means to reel Ms Assi back in.
This extraordinarily sophisticated and complex fraud culminated in a civil claim. Ms Assi brought a claim in the torts of misuse of private information and harassment, as well as under the GDPR. The claim was settled. The social media specialist solicitor Yair Cohen acted for Ms Assi. Ms Bhogal’s lawyers initially raised the defence that Ms Bhogal had, in fact, been groomed by Ms Assi. The parties ultimately settled. According to 5RB, the chambers of Ms Assi’s counsel, the claim is considered to be the first successful civil claim relating to catfishing in the common law world.
The key extant question is whether any criminal liability is capable of attaching to Ms Bhogal’s conduct. The police did not act on Ms Assi’s complaint. The reason given was that the alleged conduct, whilst reprehensible, was not prima facie criminal. In the final episode of ‘Sweet Bobby’, it is revealed that the Independent Office of Police Conduct (IOPC) has concluded that the police did not properly consider Ms Assi’s evidence. Ms Assi’s legal battle for a criminal investigation and prosecution continues.
In the meantime, lawyers and legal commentators have noted the lack of an explicit catfishing offence in English and Welsh law. Nonetheless, it may be that the facts of this case can be mapped onto an existing offence or offences. Ms Assi’s solicitor, Mr Cohen, argued that ‘the police have been locked into a conceptual thinking that was limited to their previous experience and knowledge of how things ought to be working in the offline world’. It might be the case that the catfishing, or its component acts, already constitutes a criminal offence.
Legal journalist Joshua Rozenberg suggests section 76 of the Serious Crime Act 2015, in force from December 2015, as a possible offence that could be applied to instances of ‘catfishing’.
(1) A person (A) commits an offence if––
(a) A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive,
(b) at the time of the behaviour, A and B are personally connected …
(2) A and B are “personally connected” if––
(a) A is in an intimate personal relationship with B, or
(b) A and B live together and––
(i) they are members of the same family, or
(ii) they have previously been in an intimate personal relationship with each other…
Applying section 76 to the facts of Ms Assi’s case would be novel. This section was understood at the time of its enactment as creating a new domestic abuse offence. By criminalising ‘controlling or coercive behaviour’, it was hoped that this offence would increase the power of the police, prosecution, and courts to combat domestic abuse where the complainant had not been physically assaulted.
On the face of it, the offence is not limited to factual circumstances that we more commonly understand as ‘domestic abuse’. But when the policy of the offence is considered, the picture is more complex than a literal reading would suggest. One can see how the definition ‘personally connected’ was constructed to embrace those situations where complainants and defendants did not live together, or perhaps had chaotic living arrangements. That appears to be the reason for an ‘intimate personal relationship’ being sufficient to establish a ‘personal connection’ for the sake of section 76(2). By contrast, if the personal connection is one of familial ties, the C and D must also have lived together at the time of the offence. The offence is broadly constructed to capture domestic abuse occurring in different forms and settings – but, as a result, read literally, it might be applicable in circumstances that are not commonly understood to constitute ‘domestic violence’.
If the prosecution, in a hypothetical trial, successfully established on the facts the first element of the offence (‘controlling or coercive behaviour’), the prosecution would then have to win on the legal issue of what constitutes an ‘intimate personal relationship’. From the podcast, though it is unclear, it seems Ms Assi engaged in ‘phone sex’ with ‘Bobby’ (Ms Bhogal). It would also seem that, by Ms Assi’s telling, that they developed an intimate emotional relationship, in which they shared intimate details about their lives. Of course, in a trial, the court would hear Ms Bhogal’s story; the media account of the case has followed Ms Assi’s account of event. Ms Bhogal has chosen not to comment publicly on the dispute. But even if Ms Assi’s account is accepted as fact, there would remain the question of whether fraud at the heart of the relationship has any bearing on the offence. Ms Assi believed herself to be in a ‘personal intimate relationship’ with ‘Bobby’, not Ms Bhogal.
What is the significance of this fact? Is there a conceptual difference between someone believing they were in an in-person relationship with someone using a fraudulent identity and someone believing they were in an online relationship with someone using a fraudulent identity ? Imagine person A believed they were in a relationship with person B, and they met in person and were physically intimate with each other. It later turned out that person ‘B’ was in fact person C, and they had stolen the identity of a real person B. Would it make a difference if the fake identity was the identity of a real person, as in ‘Sweet Bobby’? If person A alleged that person C had, in the guise of person B, abused them through controlling and coercive behaviour, would this preclude the committing of a section 76 offence? Probably not. Is there a difference when the relationship is entirely virtual?
This list of questions is indicative of the fact we simply do not know. It is unclear whether section 76 could be applied to catfishing. And should it? Would it be wise, as a matter of policy, to extend a domestic abuse offence into the realms of online conduct? Legislators and policymakers should give the lack of explicit statutory treatment of catfishing careful thought. They need to consider whether the conduct alleged by Ms Assi ought to be deterred and punished by criminal liability. Accompanying that, they need to decide the line where merely immoral online deception crosses over into criminal online deception. When it comes to the Internet, we are still yet to answer clearly what kind of conduct we wish to criminalise. Getting the scope of criminalisation of online conduct right is vital for preserving the Internet as a space for free speech, protest, commerce, and art. The criminal law is a blunt tool, and its deployment to tackle social ills should be given careful and considered thought.