Kevin Paulsen Information Privacy Paper Civil Recourse for the Catfished Against the Catfish

Kevin Paulsen

I. INTRODUCTIONThe age of social media has introduced an ever increasing throng of attacks on a persons privacy. One of the more recently recognized attacks is the phenomenon known as catfishing. The term catfish takes its name from the bottom-feeding fish and refers to someone that engineers a false online identity.[footnoteRef:1] Getting catfished is when someone falls for a person online who is not necessarily real and typically involves the use of pictures, phone calls, social media profiles, text messages, e-mails and even phony friends or family members.[footnoteRef:2] [1: Mary Pilon, In Teo Story, Deception Ripped From the Screen, NY Times (Jan. 17, 2013), http://www.nytimes.com/2013/01/18/sports/ncaafootball/deception-ripped-from-the-screen-in-hoax-story-of-manti-teo.html?_r=0. ] [2: Id.]

The term and practice of catfishing was defined and made a part of the public lexicon in 2010 when Yaniv Nev Schulman and his brother Ariel produced Catfish, a documentary about Nevs online relationship.[footnoteRef:3] The documentary follows Nev as he develops a romantic interest in a beautiful twenty-something named Megan who lives in Michigan, half the country away from Nevs New York home.[footnoteRef:4] As their relationship develops, Nev and Megan send each other emails, texts, pictures, and talk on the phone, but failure to meet or set up a video chat makes Nev and Ariel suspicious.[footnoteRef:5] Nev and Ariel do some investigating and make a surprise visit to Megans home in Michigan only to discover that Megan does not exist.[footnoteRef:6] Instead, Nev finds out that he has been communicating with a middle-aged married woman named Angela who had stolen someone elses social media pictures to create Megan.[footnoteRef:7] As Nev tries to deal with the humiliation, confusion, and dejection experienced as a result of this revelation, Angelas husband shares the following adage in an attempt to provide a positive perspective on the situation: [3: Catfish (Relativity Media 2010).] [4: Id.] [5: Id.] [6: Id.] [7: Id.]

They used to tank cod from Alaska all the way to China. Theyd keep them in vats in the ship. By the time the codfish reached China, the flesh was mush and tasteless. So this guy came up with the idea that if you put these cods in these big vats, put some catfish in with them and the catfish will keep the cod agile. And there are those people who are catfish in life. And they keep you on your toes. They keep you guessing, they keep you thinking, they keep you fresh. And I thank God for the catfish because we would be droll, boring and dull if we didnt have somebody nipping at our fin.[footnoteRef:8] [8: Id.]

It is from Nevs experience and this story that the practice of catfishing was labelled and introduced to the public; however, it is not a recent phenomenon. According to the Better Business Bureau, who refers to this practice as the sweetheart scam, this form of deception has been extremely prevalent since the proliferation of social media.[footnoteRef:9] While Facebook is typically the means used to catfish, as shown by the documentary Catfish, other social media sites such as Tinder,[footnoteRef:10] as well as online dating sites[footnoteRef:11] have received a lot of attention for catfishing scams. [9: Megan Herrera, Catfishing: New Label for an Old Scam, Consumer News and Opinion Blog (Jan. 18, 2013), http://www.bbb.org/blog/2013/01/catfishing-new-label-for-old-scam/. ] [10: Bianca Bosker, How a Tinder Experiment Lured 70 Guys to a Froyo Shop in Search of Dream Girl, The Huffington Post (Apr. 13, 2013, 5:18 PM), http://www.huffingtonpost.com/2013/04/13/tinder-experiment_n_3077047.html. ] [11: See, e.g. Robinson v. Match.com, L.L.C., 3:10-CV-2651-L, 2012 WL 3263992 (N.D. Tex. Aug. 10, 2012).]

Catfishing has only recently become widely known thanks to Manti Teo, the Heisman candidate for the 20122013 college football season who had received extensive media attention due to his impressive performance during his senior year despite losing his girlfriend to cancer only to later discover that she never existed.[footnoteRef:12] Since the Teo incident, many other celebrities and influential people worldwide have fallen victim to this practice including Thomas Gibson, former star of Dharma and Greg and current star of Criminal Minds,[footnoteRef:13] Casey Donovan, winner of the second season of Australian Idol,[footnoteRef:14] the NBAs Chris Birdman Anderson,[footnoteRef:15] and Scott Sassa, former president of entertainment and syndication at Hearst.[footnoteRef:16] [12: Kashmir Hill, The Manti Teo Hoax Means Everyone Knows What a Catfish Is, Forbes (Jan. 22, 2013, 6:20 PM), http://www.forbes.com/sites/kashmirhill/2013/01/22/the-manti-teo-hoax-means-everyone-now-knows-what-a-catfish-is/.] [13: Amanda Crum, Thomas Gibson Catfish Video Released, WebPro News (Aug. 19, 2013), http://www.webpronews.com/thomas-gibson-catfish-video-released-2013-08. ] [14: Casey Donovans Bizarre Confession: My Six-Year Relationship Was a Hoax, News.com.au (Feb. 25, 2014, 3:43 PM), http://www.news.com.au/entertainment/music/casey-donovans-bizarre-confession-my-sixyear-relationship-was-a-hoax/story-e6frfn09-1226837272582. ] [15: Arnie Stapleton, Chris Anderson Investigation: Cops Say Birdman Was The Victim of Online Catfishing Hoax, The Huffington Post (Sept. 19, 2014, 4:48 AM), http://www.huffingtonpost.com/2013/09/19/chris-andersen-investigation_n_3952050.html. ] [16: Jim Edwards, Hearst Exec May Have Been Victim of Catfish Sexting Scam, Business Insider (Apr. 12, 2013, 11:46 AM), http://www.businessinsider.com/hearst-exec-may-have-been-victim-of-catfish-sexting-scam-2013-4. ]

With increasing attention on the practice of catfishing and more public awareness of this scam, it has even made its way into the legal lexicon. In 2013, a federal district court in Indiana heard the case of Zimmerman v. Bd. Of Trustees of Ball State University in which two students sued Ball State University to contest the punishment they received for performing a prank on a fellow student.[footnoteRef:17] Their prank involved creating a Facebook page for a fake local high school student named Ashley and using the page to lure their fellow student into a relationship.[footnoteRef:18] As the relationship developed, the victim of the prank invited Ashley to a movie only to find that Ashley was really part of a prank performed by his classmates, who videotaped the victim as he entered the movie theater and posted the video online with the title [Students name] is a pedophile.[footnoteRef:19] In its decision, the court adopts Urban Dictionarys definition of catfishing to define this prank and found that no reasonable jury could conclude that [this scam] was not objectionable and that the Universitys punishment was justified.[footnoteRef:20] [17: Zimmerman v. Bd. Of Trustees of Ball State University, 940 F. Supp. 2d 875 (S.D. Ind. 2013). ] [18: Id. ] [19: Id. ] [20: Id. at 89192.]

With the growing prevalence of catfishing in societal and legal spheres, the law is destined to play an important role in resolving this issue.[footnoteRef:21] Importantly, the law must play a role in providing some sort of legal claim and remedy for victims of catfishing. While contract law provides claims and remedies for victims against the websites and companies whose platforms are used in these hoaxes,[footnoteRef:22] there are not yet any clear claims for victims to bring against the perpetrators of these hoaxes to recover their damages.[footnoteRef:23] [21: Tal Z. Zarsky & Norberto Nuno Gomes de Andrade, Regulating Electronic Identity Intermediaries: The Soft Eid Conundrum, 74 Ohio St. L.J. 1335, 1338 (2013).] [22: See, e.g., Robinson v. Match.com, L.L.C., 3:10-CV-2651-L, 2012 WL 3263992 (N.D. Tex. Aug. 10, 2012); Badella v. Deniro Marketing LLC, 10-03908 CRB (N.D. Cal.; Jan. 24, 2011).] [23: See infra Section III.]

This paper will discuss why it is necessary to provide catfishing victims with a civil claim and remedy against the perpetrators of these hoaxes, analyze the claims and remedies currently available to victims, and explain how they are insufficient. The paper concludes with a proposal for legislation that would provide a specific and realistic claim and remedy for catfishing victims.II. WHY IS IT NECESSARY TO PROVIDE A CIVIL CLAIM AND REMEDY?A. Catfishing is an Increasing ProblemAs detailed above, catfishing is a problem that has existed since the inception of social media and has only worsened as social media has grown more popular. This can be explained by the increasing number of people forming relationships online over the past decade or two.[footnoteRef:24] Due to the nature of online environments, individuals using social media and dating websites to meet and date others have an increased ability to control their self-presentation, and therefore greater opportunities to engage in misrepresentation.[footnoteRef:25] This use of the internet to misrepresent ones self is reflected in the statistics filed with the United States Security and Exchange Commission by Facebook in 2012 which reported that Facebook suspects that 1.5 percent of their 995 million accounts may be fraudulent.[footnoteRef:26] [24: See, e.g., Judy A. McCown, et al., Internet Relationships: People Who Meet People, 4 CyberPsychology & Behavior 593 (2001); Nichole Ellison, et al., Managing Impression Online: Self-Presentation Processes in the Online Dating Environment, 11 J. Computer-Mediated Communications 415, 416 (2006).] [25: Id. at 416.] [26: Angela Goodrum, Snopa and the Ppa: Do You Know What It Means for You? If Snopa (Social Networking Online Protection Act) or Ppa (Password Protection Act) Do Not Pass, the Snooping Could Cause You Trouble, 35 Hamline J. Pub. L. & Pol'y 132, 138 (citing Facebook, Inc., Quarterly Report (Form 10-Q) 47 (June 30, 2012),available athttp:// www.sec.gov/Archives/edgar/data/1326801/000119312512325997/d371464d10q.htm #tx3714164_14)).]

With such a backdrop, it is not a surprise that catfishing is taking place at a progressing rate. According to Max Joseph, co-host of the MTV show Catfish which is based on the documentary of the same name, [Catfishing] is not an isolated phenomenon . . . it happens all the time all over the country and in fact all over the world. When the film came out, Nev pretty much believed this was a once-in-a-blue-moon kind of event. Once it came out, he started receiving thousands and thousands of e-mails from people who said they believed the same thing was happening to them, is happening to them, and that they were kind of too embarrassed to tell anyone about it until they saw his story. . . . We both receive hundreds and hundreds of e-mails a week from people desperate to find out if this person theyre talking to is real or not and whether or not we can help them. So this is not at all a new phenomenon. Its been going on for a while, and I think it just hit the tipping point.[footnoteRef:27] [27: Erik Brady & Rachel George, Manti Teo Catfish Story is a Common One, USA Today (Jan. 18, 2013, 11:17 AM), http://www.usatoday.com/story/sports/ncaaf/2013/01/17/manti-teos-catfish-story-common/1566438/ (emphasis added). ]

The Better Business Bureau would likely agree with Josephs statement that the phenomenon of catfishing has reached its tipping point, having reported that catfishing was one of the most prevalent scams of 2011.[footnoteRef:28] With so many people falling victim to this scam, it is important to protect their interests as well as stem the tide of catfish by providing victims with a civil cause of action. [28: S.A. Victims Share Heartbreak and Horrors of Catfish Scam, Kens5.Com San Antonio (Feb. 13, 2013, 11:10 PM), http://www.kens5.com/news/SA-victims-share-heartbreak-and-horrors-of-catfish-scam-191091161.html [hereinafter S.A. Victims]. ]

B. Effects of Catfishing on the CatfishedAnother important element prompting the need for civil recourse against perpetrators of these scams is the mental, emotional, social, and even financial and resource related impacts catfishing has on its victims. Exploring examples of the harms suffered by catfishing victims helps to illustrate how truly debilitating these scams can be for victims. Manti Teos released statement regarding the catfishing scam he experienced paints a vivid image of the general emotional effects catfishing can have on a victim:This is incredibly embarrassing to talk about, but over an extended period of time, I developed an emotional relationship with a woman I met online. We maintained what I thought to be an authentic relationship by communicating frequently online and on the phone, and I grew to care deeply about her. To realize that I was the victim of what was apparently someone's sick joke and constant lies was, and is, painful and humiliating.It further pains me that the grief I felt and the sympathies expressed to me at the time of my grandmother's death in September were in any way deepened by what I believed to be another significant loss in my life. . . . To think that I shared . . . my happiness about my relationship and details that I thought to be true about her just makes me sick. I hope that people can understand how trying and confusing this whole experience has been. In retrospect, I obviously should have been much more cautious. . . . Fortunately, I have many wonderful things in my life, and I'm looking forward to putting this painful experience behind me . . .[footnoteRef:29] [29: Story of Manti Teo Girlfriend a Hoax, ESPN (Jan. 17, 2013, 6:20 PM), http://espn.go.com/college-football/story/_/id/8851033/story-manti-teo-girlfriend-death-apparently-hoax. ]

Although Teos shame and embarrassment was experienced on a national stage, John Breyault, director of the National Consumers Leagues fraud center, suggests that these feelings are typical of the feelings expressed by victims of this behavior.[footnoteRef:30] Celebrity psychologist Dr. Jeff Gardere suggests an additional emotional harm to catfishing victims, specifically that finding out that theyve been played like a pawn is a major nail in the coffin for their self-esteem.[footnoteRef:31] While on the surface such effects may seem unremarkable, taken together they can severely impact a victims life. For example, in the Zimmerman case discussed above, the victim of the catfishing scam reported that as a result of the scam and the emotional harms he experienced, he was a nervous wreck, had trouble sleeping at night, and was worried about what type of bullying [he] may be a victim of next.[footnoteRef:32] Furthermore, he was prescribed anti-depressants to help him deal with the situation and had trouble completing his degree.[footnoteRef:33] A much more tragic example of the effects these emotional harms can have on victims is that of Megan Meier. Megan Meier was a young teen who after allegedly spreading some gossip about a fellow classmate was subjected to a cruel catfishing hoax.[footnoteRef:34] The catfish in this scenario, the mom of Megans classmate, created the fictitious identity Josh Evans to get close to Megan only later to break up with her, and insult her.[footnoteRef:35] As a result of this hoax and the resultant emotional harms inflicted on her, Megan took her own life.[footnoteRef:36] This example, though extreme, represents the real possibility that these hoaxes can harm a person emotionally, and even physically. [30: Brady & George, supra note 27 (It's embarrassed. It's ashamed . . . I think that's what most victims feel when they found out they've been strung along and they think they're in love with somebody.)] [31: Gerren Keith Gaynor, Skype Me So I Know Its Real: The Psychology Behind Catfishing, Ebony (Oct. 7, 2013), http://www.ebony.com/love-sex/skype-me-so-i-know-its-real-the-psychology-behind-catfishing#axzz2yEtOkPfo. ] [32: Zimmerman v. Bd. Of Trustees of Ball State University, 940 F. Supp. 2d 875, 880 (S.D. Ind. 2013). ] [33: Id. ] [34: Zarsky & Andrade, supra note 21, at 1371.] [35: Id. ] [36: Id.]

In addition to emotional harms, catfishing victims may suffer a variety of social harms. On a localized level, these harms include, as the co-hosts of MTVs Catfish have stated, the use of false profiles to manipulate and take advantage of other people in the real world as well as turn people against each other. [footnoteRef:37] On a more global level, these harms can include serious damage to a victims reputation. A great example of this is Chris Birdman Anderson, a forward for the Miami Heat in the NBA. As a result of a catfishing prank perpetrated by a jilted fan, Denver legal authorities investigated Anderson for possession of child pornography, which in turn was widely reported by the media.[footnoteRef:38] Although the investigation did not yield incriminating evidence against Anderson,[footnoteRef:39] the allegations that Anderson was involved with child pornography caused a serious hit to his reputation, something he agonized over throughout the entirety of the fifteen month investigation.[footnoteRef:40] [37: Season 3 of Catfish Gets Dark, The Huffington Post (Apr. 2, 2014, 2:02 PM), http://www.huffingtonpost.com/2014/04/02/season-3-of-catfish-gets-dark_n_5077675.html. ] [38: Stapleton, supra note 15.] [39: Id.] [40: John Wertheim, How Chris Anderson Got DupedAnd Finally Cleared His Name, Sports Illustrated (Sept. 18, 2013, 4:46 PM), http://sportsillustrated.cnn.com/nba/news/20130918/chris-anderson-clears-name/#ixzz2yEbuz24u. ]

Finally, catfishing victims often expend substantial resources in pursuing these false relationships. As with any relationship, online relationships result in a lot of expended time, energy, and sometimes even money. Many of these relationships last for many years, with victims spending a lot of time and energy every day communicating with the catfish perpetrators.[footnoteRef:41] One victim went as far as to say I bet everything in my life on this in discussing the effect a catfishing scam had on her.[footnoteRef:42] Some victims financially bet a lot on these relationships, and sometimes everything they have. Take, for example, the 50 year old widowed nurse in Florida who lost $450,000 wiring money to a man she thought loved her and had her best interest in mind.[footnoteRef:43] [41: Kelly Campbell, Catfish and Secrets, Psychology Today (June 24, 2013), http://www.psychologytoday.com/blog/more-chemistry/201306/catfish-and-secrets. ] [42: Lauren Suval, The Story Behind Catfish, Psych Central (Dec. 18, 2012), http://psychcentral.com/blog/archives/2012/12/20/the-story-behind-catfish. ] [43: Julian Johnson, Catfish Victim Speaks Out, Count on 2 First (Feb. 15, 2013, 9:35 PM), http://www.nbc-2.com/story/21222407/catfish-victim-speaks-out-about. ]

These various harms show that catfishing results in much more than the standard pain and heartbreak associated with a failed relationship for the victim. As such, victims deserve a specific and realistic method by which they can pursue damages from their catfish.III. CURRENTLY AVAILABLE CLAIMS AND REMEDIESAlthough some civil claims and remedies are available for catfishing victims to use against the perpetrators of these scams, the claims and remedies that currently exist are not narrowly tailored to the situation presented by catfishing and as such are insufficient to provide appropriate damages for the harms the perpetrators have caused. The primary civil claims and remedies available to catfish victims are based on the common law torts of intentional infliction of emotional distress and misrepresentation. Another remedy, a criminal remedy out of California that targets cyberbullying, is also useful to look at even though it is based in criminal law because it provides the victim an option to pursue civil remedies. A close look at each of these claims and remedies shows that a separate civil claim and remedy specific to catfishing must be implemented in order to allow victim to properly seek damages from their catfish. These claims and remedies, though not completely useful in a catfishing context by themselves, may act as helpful resources to legislatures seeking to provide a civil claim and remedy for catfishing victims.One tort claim and remedy that plaintiffs lawyers will often look to in determining whether a catfishing victim has a valid cause of action against the perpetrator of the catfishing scam is intentional infliction of emotional distress. According to the Restatement (Second) of Torts 46, intentional infliction of emotional distress occurs when:1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or(b) to any other person who is present at the time, if such distress results in bodily harm.[footnoteRef:44] [44: Restatement (Second) of Torts 46 (1965).]

This civil claim and remedy quickly comes to attorneys mind because it provides damages when one individual intentionally or recklessly causes another emotional distress. For this reason, it would seem like a great fit for victims of catfishing who, as detailed above, suffer from a variety of emotional harms as a result of the scam. However, attorneys are hesitant to make this claim in a catfishing situation because it is difficult to prove actual damages.[footnoteRef:45] While someone like Manti Teo might be able to prove damages due to the effect the scam had on his NFL draft stock, it would be more difficult for an ordinary person.[footnoteRef:46] This difficulty in proving damages, coupled with the likelihood that any provable damages would not be significant for most victims, acts as a powerful disincentive for a lawyer to represent a catfishing victim. Most personal injury lawyers work on a contingency fee basis where they front all court costs and typically receive 3040 percent of any recovery. [45: See Rachel George, Legal Recourses Limited for Teo To Seek, USA Today (Jan. 19, 2013, 7:26 PM), http://www.usatoday.com/story/sports/ncaaf/2013/01/19/manti-teo-legal-recourse-hoax-fake-girlfriend/1847259/; Zarsky & Andrade, supra note 21, at 1400.] [46: See Lester Munson, Hoax Bad, But Not Criminal, Espn (Jan. 17, 2013, 6:13 PM), http://espn.go.com/college-football/story/_/id/8854329/manti-teo-girlfriend-hoax-lawsuit-arise-case-criminal-charges-unlikely. ]

Additionally, this claim and remedy requires the victim to prove that the catfish intentionally or recklessly caused the victim severe emotional damage. Motives for catfishing vary widely, ranging from taking revenge,[footnoteRef:47] living out a personal desire or fantasy,[footnoteRef:48] getting attention,[footnoteRef:49] and inducing financial gifts,[footnoteRef:50] as well as many other reasons.[footnoteRef:51] Many of the motives of catfish will not trigger the required intentional or reckless element of this claim, leaving many catfishing victims without recompense for the harms they have suffered. [47: See, e.g., Kara Warner, Manti Teo Hoax: Inside the Mind of a Catfish, MTV (Jan. 19, 2013, 10:53 AM), http://www.mtv.com/news/articles/1700515/manti-teo-hoax-catfish-chelsea.jhtml (I created my fake profile because I was bullied and I wanted revenge); Lily Rothman, The Manti Teo Hoax: 5 Reasons People Create Fake Girlfriends (According to Catfish), Time (Jan. 23, 2013), http://entertainment.time.com/2013/01/24/the-manti-teo-hoax-5-reasons-people-create-fake-girlfriends-according-to-catfish/slide/slide-1/ (You did thiswhy? asks Jasmine. Why not? Mhissy replies, Its revenge. Mhissy created Mike specifically to seduce Jasmine, hoping to keep her away from the man they were both romantically interested in.) ] [48: Jane Boursaw, Catfish: Creepy Lie or Touching Tale of Humanity, The Huffington Post (Dec. 30, 2010, 11:42 AM), http://www.huffingtonpost.com/jane-boursaw/catfish-a-tale-of-grace-d_b_798871.html (Angela was, in fact, using them to play out her own fantasies of becoming a dancer -- a dream she'd abandoned forever when she married husband Vincent and began caring for his two severely disabled sons -- grown men still in diapers.); Rothman, supra note 47 (Posing as a person of another sex or gender identity is a common theme throughoutCatfish, as the Internet gives the people behind the false profiles a chance to inhabit personas that they may not be comfortable with off-line.)] [49: Rothman, supra note 47 (Rose says shes addicted to making fake profiles, shes mastered the art of the catfish, she does it all the time).] [50: See S.A. Victims, supra note 28; Johnson, supra note 43.] [51: Id.]

For these reasons, an intentional infliction of emotional distress claim and remedy, while topically appropriate for the harms caused by catfishing, provides little recourse for the average victim of a catfishing scam.Another tort remedy attorneys may look to in these situations is a misrepresentation claim and remedy. Such a claim and remedy fit well with these catfishing scams because catfishing involves ongoing misrepresentations by the catfish. Restatement (Second) of Torts 531 provides that:One who makes a fraudulent misrepresentation is subject to liability to the persons or class of persons whom he intends or has reason to expect to act or to refrain from action in reliance upon the misrepresentation, for pecuniary loss suffered by them through their justifiable reliance in the type of transaction in which he intends or has reason to expect their conduct to be influenced.[footnoteRef:52] [52: Restatement (Second) of Torts 531 (1977).]

While this claim and remedy directly addresses the issue of misrepresentation which is present in all catfishing scams, it, like the intentional infliction claim and remedy, is not useful to catfishing victims because it is difficult to prove actual damages.[footnoteRef:53] Additionally, this may not be a useful strategy for catfishing victims because the remedy for such a misrepresentation is liability for the pecuniary damages caused to the victim, and not all victims suffer pecuniary damages. Thus, while misrepresentation takes place in catfishing scams, bringing a misrepresentation claim would not likely prove useful or fruitful for many catfishing victims. [53: See Zarsky & Andrade, supra note 21, at 1400.]

Finally, it is useful to look at a criminal law recently passed in California which was passed with cyberbullying in mind. This law provides a great example of a law specific to the issue of harming someone using misrepresentation on the internet. California Penal Code 528.5 provides: (a) Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on anInternet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d).(b) For purposes of this section, an impersonationis credible if another person would reasonably believe, or did reasonably believe, that the defendant was or is the person who was impersonated.(c) For purposes of this section, "electronic means" shall include opening an e-mail account or an account or profile on a social networkingInternetWeb site in another person's name.(d) A violation of subdivision (a) is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.(e) In addition to any other civil remedy available, a person who suffers damage or loss by reason of a violation of subdivision (a) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief pursuant to paragraphs (1), (2), (4), and (5) of subdivision (e) and subdivision (g) of Section 502.(f) This section shall not preclude prosecution under any other law.[footnoteRef:54] [54: Cal. Pen. Code 528.5.]

This law provides clear recourse for victims of internet based misrepresentation schemes and is specifically tailored to that problem. It not only imposes criminal liability on the perpetrator, but even provides the victim the opportunity to bring a civil action against the perpetrator for compensatory damages, injunctive relief, and equitable relief. Unfortunately for catfishing victims, this law and laws similar to it call for impersonation of an actual personan element missing in catfishing scams.[footnoteRef:55] Additionally, this law also suffers from the same deficiency as the intentional infliction and misrepresentation claims and remedies because only provable damages may be recovered. Thus, while this law provides a great template for how to create a narrowly tailored provision to recompense catfishing victims, as written it fails to provide an adequate remedy. [55: Zarsky & Andrade, supra note 21, at 137172 (emphasis added).]

Although the aforementioned claims and remedies do exist and could possibly be used by catfishing victims in an attempt to recover damages from the perpetrator of catfishing hoaxes, as shown above, they will rarely allow victims to receive remuneration from the catfish who have harmed them.IV. PROPOSED CLAIM AND REMEDYBecause each of the currently available civil claims and remedies leave so many holes and gaps for victims of catfishing seeking damages from their catfish, it is expedient that states create a civil claim and remedy for victims of this increasingly prevalent scam. This claim and remedy, at its core, should be based on the following general rule proposed by Professor Woodrow Hartzog which relates to internet usage, [t]here should be no misrepresentations made to induce reliance on a false identity of a networked connection.[footnoteRef:56] It should also incorporate the relevant and positive attributes of the claims and remedies currently available to victims such as recovery for the emotional distress caused by the scam as well as the broad based damages and losses that can be suffered as a result of the scam, including the availability of compensatory damages, injunctive relief, and equitable relief available to the victim. Taking these considerations together and using Californias narrowly tailored cyberbullying law as a template, a Catfishing Scam law might read as follows: [56: Woodrow Hartzog, Social Data, 74 Ohio St. L.J. 995, 102124 (2013).]

(a) Notwithstanding any other provision of law, any person who knowingly or recklessly misrepresents him or herself as another person, real or fictitious, through or on anInternet website or by other electronic means and in so doing harms, intimidates, defrauds, or threatens another person is subject to liability for any damages, including emotional distress, damage to reputation, financial loss, or any loss of resource proximately resulting from the misrepresentation. (b) For purposes of this section, a misrepresentation only occurs if another person would reasonably believe, or did reasonably believe, that the defendant was or is the person who he or she held him or herself out to be.(c) For purposes of this section, electronic means shall include opening an e-mail account or an account or profile on a social networkingInternetwebsite in the name of another person, whether real or fake.(e) In addition to any other civil remedy available, a person who suffers any of the damages or losses listed in subdivision (a) as a proximate result of anothers misrepresentation on the Internet may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief.(f) Any person who violates the provisions of this statute shall be liable to the person affected by his or her misrepresentation for $10,000 or actual damages, whichever is greater. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorneys fee to be paid by the defendant, and costs of the action.

A law drafted in such a manner would benefit catfishing victims by providing them with a specific and realistic remedy for the specific harms that they encounter as a result of the catfishing scams. It would also prevent frivolous lawsuits because it would only allow victims who have suffered proximate damages as a result of a reasonably believable misrepresentation to recover damages. By introducing legislation providing for this claim and remedy or one substantially similar to it, catfishing victims would finally be given the opportunity to air their grievances in a court of law and gain closure while having the opportunity to possibly receive damages for the harm they have suffered.[footnoteRef:57] It would also contribute to stemming the tide of these scams as more and more catfish are caught and forced by a court of law to pay damages to their victims. [57: See, e.g., Heather Strang & Lawrence W. Sherman, Repairing the Harm: Victims and Restorative Justice, 2003 Utah L. Rev. 15, 24 (2003) (The chance to be heard at all is usually the crucial aspect for victims in achieving a sense of satisfaction with the justice system); Ronen Perry, Empowerment and Tort Law, 76 Tenn. L. Rev. 959, 964 (2009) (This in turn leads to empowerment of the victim after being taken advantage of, allowing them to positively move forward with their lives.) ]

V. CONCLUSIONWhile catfish may keep codfish from becoming mushy and tasteless as outlined in the documentary Catfish, human catfish that cause true emotional, financial, and other harm to fellow human beings with real lives, feelings, thoughts, and dreams, have no place in modern society. When catfish strike, the catfished should have a proper civil claim available to them to strike back. Currently, the civil claims available to catfishing victims leave most of them without a specific and realistic remedy. Unless states take action to arm catfishing victims with a tailored civil claim and remedy such as the one proposed above, the catfish population will continue to grow unchecked leading to continued victimization of innocent people.16