Civil Recourse For The "Catfished" Against The "Catfish."

Kevin Paulsen Information Privacy Paper
1

CIVIL RECOURSE FOR THE CATFISHED AGAINST THE CATFISH

Kevin Paulsen

I. INTRODUCTION
The 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.
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.
2

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.
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.
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.
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.
6
Instead, Nev finds
out that he has been communicating with a middle-aged married woman named Angela who had

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.
3
CATFISH (Relativity Media 2010).
4
Id.
5
Id.
6
Id.
2

stolen someone elses social media pictures to create Megan.
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:
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.
8

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.
9
While Facebook is typically
the means used to catfish, as shown by the documentary Catfish, other social media sites such
as Tinder,
10
as well as online dating sites
11
have received a lot of attention for catfishing scams.
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

7
Id.
8
Id.
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).
3

only to later discover that she never existed.
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,
13
Casey Donovan,
winner of the second season of Australian Idol,
14
the NBAs Chris Birdman Anderson,
15
and
Scott Sassa, former president of entertainment and syndication at Hearst.
16

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.
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.
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

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.
17
Zimmerman v. Bd. Of Trustees of Ball State University, 940 F. Supp. 2d 875 (S.D. Ind.
2013).
18
Id.
4

entered the movie theater and posted the video online with the title [Students name] is a
pedophile.
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.
20

With the growing prevalence of catfishing in societal and legal spheres, the law is destined
to play an important role in resolving this issue.
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,
22
there are not yet any clear claims for victims to bring against the
perpetrators of these hoaxes to recover their damages.
23

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 Problem

19
Id.
20
Id. at 89192.
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.
5

As 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.
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.
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.
26

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

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 at http://
www.sec.gov/Archives/edgar/data/1326801/000119312512325997/d371464d10q.htm
#tx3714164_14)).
6

not at all a new phenomenon. Its been going on for a while, and I think it just hit the
tipping point.
27

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.
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.
B. Effects of Catfishing on the Catfished
Another 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

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).
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].
7

many wonderful things in my life, and I'm looking forward to putting this painful
experience behind me . . .
29

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.
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.
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.
32
Furthermore, he was prescribed anti-depressants to help him
deal with the situation and had trouble completing his degree.
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.
34
The catfish in this scenario, the mom of Megans classmate,

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.
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.
8

created the fictitious identity Josh Evans to get close to Megan only later to break up with her,
and insult her.
35
As a result of this hoax and the resultant emotional harms inflicted on her,
Megan took her own life.
36
This example, though extreme, represents the real possibility that
these hoaxes can harm a person emotionally, and even physically.
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.
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.
38
Although the investigation did not yield
incriminating evidence against Anderson,
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.
40

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,

35
Id.
36
Id.
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.
9

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.
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.
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.
43

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 REMEDIES
Although 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

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.
10

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.
44

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.
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

44
Restatement (Second) of Torts 46 (1965).
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.
11

would be more difficult for an ordinary person.
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.
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,
47
living out a personal desire or fantasy,
48
getting
attention,
49
and inducing financial gifts,
50
as well as many other reasons.
51
Many of the motives

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.
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 this why?
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
throughout Catfish, 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.
12

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.
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.
52

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.
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.
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

52
Restatement (Second) of Torts 531 (1977).
53
See Zarsky & Andrade, supra note 21, at 1400.
13

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 an Internet
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 impersonation is 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 networking Internet Web 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.
54

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.
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

54
CAL. PEN. CODE 528.5.
55
Zarsky & Andrade, supra note 21, at 137172 (emphasis added).
14

narrowly tailored provision to recompense catfishing victims, as written it fails to provide an
adequate remedy.
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 REMEDY
Because 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.
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:
(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 an Internet 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

56
Woodrow Hartzog, Social Data, 74 OHIO ST. L.J. 995, 102124 (2013).

15

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 networking Internet website 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.
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.)

16

V. CONCLUSION
While 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.

Civil Recourse For The "Catfished" Against The "Catfish."

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