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PROTECTING THE RIGHT TO IDENTITY AGAINST CATFISHING: WHAT’S THE CATCH?

Ndyulo, Lisa (2023) — Obiter

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DOI: 10.17159/obiter.v44i2.14305 (opens in a new tab)

Type:   Journal Article
Country:   Global
Tags:   Catfishing, Comparative Law, Cybercrimes Act, Image Misappropriation, Online Impersonation, Right To Identity, Social Media Law
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Synopsis

            
The publication examines catfishing as a legal issue in South Africa, focusing on how using a person’s image without consent to create a fake profile threatens the right to identity and the related dignity of individuals. It explains catfishing as online impersonation that harms a victim by misusing an identifiable facet of personality, namely appearance or image, and discusses how South African courts balance this against freedom of expression. The author surveys how catfishing is addressed in the United States, highlighting California and Oklahoma where both statutory and common-law remedies exist for online impersonation and catfishing, including civil and criminal provisions. A central aim is to assess whether South African victims have adequate remedies. The analysis compares US approaches with South Africa’s legal landscape, noting that the Cybercrimes Act may not clearly protect identity features and may not directly cover catfishing where the injury is the misappropriation of image used to mislead others. The article contends that, in practice, victims in SA may pursue damages under the common-law actio iniuriarum or seek an interdict to halt ongoing infringing conduct. It also discusses the potential gaps in platform takedown processes and the limits of relying on cyberfraud provisions, since catfishing may not fit neatly within statutory definitions of computer data storage or interference. Overall, the article concludes that California and Oklahoma offer more explicit, adequate remedies for online impersonation and catfishing than currently available in South Africa, while SA could rely on traditional delictual and interdictory options, with uncertain applicability of the Cybercrimes Act to identity misappropriation.

          

        
                  

            
Identified Gaps

            
South African law has no formal legal definition or express regulation of catfishing. The article identifies uncertainty over whether the Cybercrimes Act protects people whose images are used in fake profiles. It also identifies a common-law gap: misappropriation requires commercial gain, although catfishing may be motivated by noncommercial reasons such as seeking romance, friendship, anonymity, or jest.

          

        
                  

            
Methods

            
This is a comparative doctrinal legal analysis. It examines South African common-law identity protections and the Cybercrimes Act, then compares them with statutory and common-law protections in California and Oklahoma. The analysis considers legal definitions, statutes, cases, privacy torts, right-of-publicity rules, damages claims, and interdicts available to people whose images are used in catfish profiles.

          

        
                  

            
Limitations

            
The analysis is limited to victims whose images are used without consent, rather than third parties deceived by catfish accounts. The United States comparison is limited to California and Oklahoma. The article also notes that South African courts have not yet decided the application of Cybercrimes Act section 8 to catfishing, so conclusions on that provision remain interpretive.

          

        
                  

            
Future Work

            
Future research could examine how South African courts interpret and apply section 8 of the Cybercrimes Act to catfishing, particularly where the person depicted is not the direct target of fraud. It could also assess whether explicit statutory online-impersonation protections would address gaps left by common-law remedies.

          

              

    
    

        
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