Photo Credit: https://phys.org/news/2018-07-catfish-people-onlineit-money.html
By: Kaitlyn Chomin
Member, American Journal of Trial Advocacy
In the age where the internet is an integral part of our everyday lives, a catfish is no longer just a whiskery animal that lurks in the depths of a fresh water lake. Catfishing also “refers to a person who sets up a false social networking profile for deceptive purposes.”[1] In 2017 more than 15,000 people in the United States reported that they had been scammed into believing they were in a romantic relationship with someone over the internet.[2] The phenomenon has become so common that it not only has a name, but it has been portrayed in a critically acclaimed documentary and a seven-year-running TV show. Victims behind catfishing stunts not only suffer severe emotional damage, but many take hits to their bank accounts as well.[3]
Although people have been catfishing just as long as they have been using social media, the phenomenon did not become well known until 2012 when MTV premiered the hit series “Catfish: The TV Show.”[4] Catfishing usually begins by someone creating a fake social media profile either using edited photos or photos they have stolen from an unwilling third party.[5] The catfish use these stolen identities to create a more intriguing version of themselves and then engage in contact with others who are unaware of the deception.[6] There are many different reasons that people catfish, but the contributing factor appears to be loneliness.[7]
MTV’s hit television series follows two hosts, Nev Schulman and Max Joseph, as they help people who have fallen in love online to see if their relationships are truly what they believe them to be.[8] The hosts travel the country meeting people who have reached out to them to find out if their significant others are really who they say they are. Schulman, being a victim of catfishing himself, started this journey in 2010 when he created the documentary “Catfish” to broadcast his experiences to the world.[9] Schulman’s own experience began when he provided positive feedback to someone he believed to be an eight-year-old, budding artist named Abby.[10] However, to his dismay, “Abby” was actually a troubled housewife named Angela Wesselman-Pierce who was posing as the young girl for her own selfish reasons, only she did not stop there.[11] Once Schulman and Abby began engaging, Wesselman-Pierce created twenty-one different characters to make up her alternate reality. One of those characters was Abby’s nineteen year old sister Megan, who quickly became Schulman’s love interest.[12] The two cultivated a romance through intimate text messages, flirty phone calls, and passionate love songs, all the while never meeting in person.[13] The seven month whirlwind romance came to a crashing end when things started to not add up, and Schulman discovered that he had been deceived.[14] Schulman coined the term “catfish” after speaking to Angela’s husband who compared Angela to the fish that he described to be used by fisherman “to keep marketable cod active while in transit so they’d stay alive . . . .”[15] Just like the catfish, Angela kept people active as well. Angela claimed that each of the characters she created were a part of the reality that she wished she had.[16]
Angela’s story is similar to many of the stories that are portrayed on the Catfish TV series. A reoccurring theme of the show is people not feeling good about their looks, so they change them.[17] Although Schulman was devastated and embarrassed when he found out he had been lied to, rather than seeking monetary damages for his emotional injuries, Schulman took his heartbreak and turned it into a thriving success story.
However, not every catfishing story turns out as successful as Schulman’s. Many people in the United States are not only lured into giving their hearts away but giving away their money as well.[18] Victims nationwide have lost hundreds of millions of dollars in catfishing schemes.[19] Although devastating, these victims have the potential to bring criminal charges against their perpetrators.[20] Moreover, criminal charges could potentially be brought if there is intent to blackmail as well.[21] However, absent these findings, the potential for remedy may be a bit more difficult.[22]
So, what legal remedies are available to these individuals who have suffered such emotional trauma? Twelve states now make it a crime to impersonate someone online, although those law do not apply to the creation of a fictitious profile.[23] Missouri is the only state that has created a law that makes catfishing illegal if there is an intent to create emotional distress.[24] Due to the relatively new nature of this phenomenon, there is a lack of specific laws focusing solely on catfishing.[25] Rather, lawyers are forced to apply different legal theories to the situations hoping that one sticks.[26]
The first potential basis of liability is fraud.[27] In order for fraud to be present, there must be a false representation of material fact that was intended to be relied upon by the other person that results in injury.[28] Although it is not typically difficult to prove a false misrepresentation has been made or that there had been reliance, the issue arises when trying to prove injury.[29] The most common way a victim can prove fraud is evidence that they have been defrauded of money, credit, or other things of value.[30] Fraud can be brought as a civil or criminal claim, each of which results in different remedies.[31] However, absent a showing that all of the elements have been met, a claim for fraud cannot be proven.
Next, victims of catfishing can potentially bring a claim for intentional infliction of emotional distress (“IIED”).[32] This cause of action requires the victim to prove that the defendant’s actions are extreme and outrageous and resulted in severe emotional distress.[33] This cause of action is helpful to victims who cannot prove any financial gain on behalf of the defendant.[34] The plaintiff in an IIED claim has the burden of proving actual psychological damage occurred as a result of the conduct and that the conduct was outrageous enough to “shock the senses.”[35] For example, Notre Dame quarterback, Manti Te’o, was the victim of a catfishing scheme where he believed his girlfriend had died of leukemia only to find out that she had never actually existed at all.[36] A situation like this would involve conduct so outrageous that it would shock the senses.[37] Moreover, some states recognize the tort of negligent infliction of emotional distress.[38] Plaintiffs in these states have a significantly lower burden to meet in regard to the mens rea requirement and may be able to prove their cases without proving intent.[39]
What many people may not realize is that there are usually two victims in a catfishing scheme: the one who is being deceived and the one whose likeness is being stolen. These other victims are not without remedies. Individuals who find their likeness being used in a catfishing scheme can potentially bring forth a claim for “misappropriation of likeness.”[40] Under this cause of action, the plaintiff must prove “the perpetrator used a protected attribute of another individual in an exploitative manner without the consent of the person to whom the attribute belonged.”[41] Additionally, they may also have a claim for defamation if false statements have been made that could harm the reputation of the victim.[42] Finally, either kind of victim could potentially have a claim for stalking or harassment depending on the particular circumstances presented.[43] Thus, although there is no legal claim for “catfishing,” victims to these insensitive acts are not without redress.
As long as people continue to use the internet, people will continue to catfish. Despite the fact that catfishing has received vast public attention since 2010, every year thousands of people are continuing to fall victim to this epidemic. For the most part the perpetrators are not intending to cause their victims emotional distress, rather, the deception is typically a response to their own emotional struggles. Sometimes, catfishing stories have a positive ending, like the couple deciding to remain together or remain friends; however, more often than not, these stories end in devastation. In these scenarios there is truly no winner. Furthermore, a majority of catfishing situations go unreported because people are embarrassed to admit they were tricked into falling in love with someone they have never met. Additionally, as a result of the underreporting, there is also a lack of regulation. Thus, because there is a lack of laws tailored directly towards catfishing, absent a showing of an intent to defraud or financial gain, many of these victims will never receive redress for their damages. But will it always be this way? As society progresses, our laws tend to do so as well. We have already seen a minority of states take an initiative to protect these victims. Will the rest of the country follow suit and create laws against catfishing? Stay tuned.
[1] Samantha Highfill, Merriam-Webster Officially Gives ‘Catfish’ a New Definition, Ent. Wkly. (May 20, 2014, 3:35 PM), https://ew.com/article/2014/05/20/merriam-webster-catfish-definition/; Catfish, Merriam-Webster Dictionary (last visited May 21, 2019), https://www.merriam-webster.com/dictionary/catfishing.
[2] Alex Grant, States with the Highest Catfishing Rates – 2019, Best VPN (last visited June 8, 2019), https://bestvpn.org/catfishing-statistics/.
[3] Id.
[4] Tara Ariano, It’s Time for Catfish to Come to an End, Vulture (May 10, 2018), https://www.vulture.com/2018/05/catfish-its-time-for-the-show-to-come-to-an-end.html.
[5] Eric Vanman, We Asked Catfish Why They Trick People Online – It’s Not About the Money, Phys Org (July 26, 2018), https://phys.org/news/2018-07-catfish-people-onlineit-money.html.
[6] Id.
[7] Id.
[8] Catfish: The TV Show, IMBD (last visited June 7, 2019), https://www.imdb.com/title/tt2498968/?ref_=ttep_ep_tt.
[9] Eric Vanman, We Asked Catfish Why They Trick People Online – It’s Not About the Money, Phys Org (July 26, 2018), https://phys.org/news/2018-07-catfish-people-onlineit-money.html.
[10] Thomas Berman, Gail Deutsch & Lauren Sher, Exclusive: ‘Catfish’s’ Angela Wesselman Speaks Out, ABC News (Oct. 8, 2010), https://abcnews.go.com/2020/catfish-woman-angela-wesselman-twisted-cyber-romance-abc/story?id=11831583.
[11] Id.
[12] Id.
[13] Thomas Berman & Gail Deutsch, Inside ‘Catfish’: A Tale of Twisted Cyber-Romance, ABC News (Oct. 8, 2010), https://abcnews.go.com/2020/catfish-movie-tale-twisted-cyber-romance/story?id=11817470.
[14] Id.
[15] Matthew Scott Donnelly, ‘Catfish’: Inspired by a True Story of Internet Deceit, MTV News (Oct. 25, 2012), http://www.mtv.com/news/2383923/catfish-movie/.
[16] Id.
[17] Denise Martin, Here’s How MTV’s Catfish Actually Works, Vulture (May 21, 2014), https://www.vulture.com/2014/05/catfish-mtv-casting-production-process.html.
[18] Alex Grant, States With the Highest Catfishing Rates – 2019, Best VPN (last visited June 7, 2019), https://bestvpn.org/catfishing-statistics/.
[19] Id.
[20] Debra Cassens Weiss, Why Internet Imposters Are Difficult to Prosecute, A.B.A. J. (Jan. 18, 2013, 1:46 PM), http://www.abajournal.com/news/article/why_catfishing_is_difficult_to_prosecute.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Can I Sue for Being Catfished?, Hg.org Legal Resources (last visited June 7, 2019), https://www.hg.org/legal-articles/can-i-sue-for-being-catfished-33850.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Can I Sue for Being Catfished?, Hg.org Legal Resources (last visited June 7, 2019), https://www.hg.org/legal-articles/can-i-sue-for-being-catfished-33850.
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] Debra Cassens Weiss, Why Internet Imposters Are Difficult to Prosecute, A.B.A. J. (Jan. 18, 2013, 1:46 PM), http://www.abajournal.com/news/article/why_catfishing_is_difficult_to_prosecute.
[37] Can I Sue for Being Catfished?, Hg.org Legal Resources (last visited June 7, 2019), https://www.hg.org/legal-articles/can-i-sue-for-being-catfished-33850.
[38] Id.
[39] Id.
[40] Id.
[41] Id.
[42] Id.
[43] Can I Sue for Being Catfished?, Hg.org Legal Resources (last visited June 7, 2019), https://www.hg.org/legal-articles/can-i-sue-for-being-catfished-33850.
American Journal of Trial Advocacy 