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  • 19 Jul 2012

What if someone creates a page on Facebook or some other social media site, tells the world that it’s your page, and posts information about you that’s embarrassing or otherwise harmful? What about someone sending messages or posting information on the internet, posing as you, to the same effect?

In 2009, Texas became one of the first states that outlawed online impersonation, as it is called, and the law was updated last year. Section 33.07 of the Texas Penal Code defines the crime of online impersonation:

“ (a) A person commits an offense if the person, without obtaining the other person’s consent and with the intent to harm, defraud, intimidate, or threaten any person, uses the name or persona of another person to:

(1) create a web page on a commercial social networking site or other Internet website; or

(2) post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.

(b) A person commits an offense if the person sends an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person:

(1) without obtaining the other person’s consent;

(2) with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and

(3) with the intent to harm or defraud any person.”

An important aspect to note about the law is that it does not prohibit a person from using the internet or a social media site to harm another person unless, in the process of doing so, the actor either creates a web page or sends an electronic transmission intending that the recipient believe that the victim created the site or sent that transmission. An essence element of section 33.07 is impersonation. Using electronic media, without impersonating another, but with the intent to cause harm may constitute an offense, but is covered under other laws, such as harassment, defined in section 42.07 of the Penal Code. A significant difference between the two crimes is not only in the elements of the offenses (for example, harassment does not require impersonation), but in the penalties prescribed for each. In that regard, while harassment is a misdemeanor, online impersonation under subsection (a) of the law, involving the creation of a website or the posting of a message on a website, is a third degree felony.

With the recent enactment of the statute, we weren’t surprised when we read that an 18-year old woman was charged in Kyle last week with online impersonation. The report alleges that a dispute between two teens led to one of them posting the other’s name, address and phone number on an online bulletin board which supposedly features a good deal of sex-related information. The surprise to us is that we haven’t read about more of these online impersonation issues.

While the law provides needed protection for victims, prosecutors face some challenges in attempting to enforce it. Earlier this year, for example, in what is believed to be the first attempted prosecution under the Texas online impersonation statute, a Cincinnati man was accused of creating a website that suggested a Travis County woman he once dated was a prostitute. Because the man was located in Ohio, and the actions that formed the basis for the prosecution took place there, questions arose as to whether the State of Texas had jurisdiction over the offense. As a result, the case was dropped by the Travis County prosecutors.

The question of jurisdiction has been argued by lawyers and discussed by legal scholars for hundreds of years. Writing on the subject in the 1913 United States Supreme Court case of Michigan Trust Company v. Ferry, Justice Oliver Wendell Holmes stated simply that “jurisdiction is power.” And without jurisdiction, a state has no power over a person.

With the proliferation of internet sites, and the unique ability of a person in one section of the country, or even in another area of the world, to harm another with the aid of modern technology, this is an area that will be the subject of more and more case law and statutes, as legislatures across the United States seek to restrict activity that is intended to damage individuals via the internet. We will keep an eye on developments in state and federal laws that attempt to deal with internet crimes, in general, and internet impersonation, in particular, as the lawmakers wrestle with this vexing issue.

Law Office of David D. White, PLLC
1205 Rio Grande Street
Austin, TX 78701
(512) 369-3737

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608 W. 12TH ST.
Austin, TX 78701
(512) 369-3737
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