In NSW, ‘catfishing’ itself is not a criminal offence. However, the circumstances relating to the act of catfishing can potentially constitute a number of other criminal offences in NSW. These include:
- Using carriage serve to menace, harass or offend
- Fraud
- Offences against minors relating to procuring or grooming children under the age of 16
These offences are considered serious, with maximum penalties including significant periods of imprisonment.
What is ‘Catfishing’?
Catfishing is the term for online deception about one’s identity, usually in an attempt to trick someone. The motivation behind ‘catfishing’ is usually related to bullying, online dating or attempts to gain a financial advantage. It can also be used as a method to engage in serious offences against children.
‘Catfishing’ to Menace, Harass or Offend
It is an offence for an individual to use a carriage service such as a telephone or the internet to harass people and distribute offensive material pursuant to the Criminal Code Act 1995 (Cth). For example, sending threatening or abusive messages or sending a large amount of unwanted messages.
This offence is often linked with ‘catfishing’ because individuals attempt to hide their identity while trying to intimidate or harass their victims.
A person commits this offence if:
- The person uses a carriage service; and
- The person does so in a way that reasonable persons would regard as being menacing, harassing or offensive.
The maximum penalty is 5 years imprisonment.
‘Catfishing’ and Fraud
Under Section 192E of the Crimes Act 1900 (NSW) a person who, by any deception, dishonestly obtains property belonging to another, or obtains any financial advantage or causes any financial disadvantage, is guilty of fraud.
In the context of ‘catfishing’, fraud could therefore be established via the act of creating and using a fake profile, fake image, or using false information to deceive another person. The maximum penalty for this offence includes fines, and/or imprisonment of up to 10 years.
To prove fraud, the prosecution needs to prove beyond a reasonable doubt that the accused:
- By deception, the defendant acted dishonestly, and
- These actions created a financial advantage over another person’s property, or caused them to suffer a financial disadvantage, and
- The actions were intentional or reckless.
‘Catfishing’ under Australian Consumer Law
Australian Consumer Law (ACL) as contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) also prohibits misleading or deceptive conduct in trade or commerce. The ACL can be used by the Australian Competition and Consumer Commission (ACCC) to prosecute individuals who engage in catfishing activities which cause financial harm to another person. For example, deceiving someone to send money or buy fake goods. Civil action can also be taken.
‘Catfishing’ to procure or groom
When ‘catfishing’ is used to procure or groom children to engage in sexual activity, serious criminal charges can be laid under section Section 66EB of the Crimes Act.
Procuring
In the context of catfishing, a charge of procuring may be laid in circumstances where a person is using a false identity to encourage a child under 16 years of age to engage in sexual activity. This could include an adult sending explicit messages, images or videos to a child, or encouraging a child to send explicit messages, images of videos of themselves to the adult.
The prosecution must prove beyond reasonable doubt that the person intended to encourage, entice, recruit or induce a child under 16 to engage in unlawful sexual activity.
It does not matter is the person they tried to encourage was not actually under 16 years of age, provided the accused person believed they were a child. However, it is a defence to this section if the accused reasonably believed the other person was not a child.
The maximum penalty for procuring is 12 years imprisonment, or 15 years if the victim is under 14 years of age.
Grooming
Grooming refers to the process of building trust and a relationship with a child, with the intention of making it easier to procure that child for sexual activity in future. This may include exposing a child to indecent material, providing a child with an intoxicating substance, or providing the child with a financial benefit.
In the context of ‘catfishing’, grooming may include engaging in explicit and inappropriate conversations online with children, including exposing the child to indecent material.
As with procuring, it is a defence if the accused person reasonably believed the other person was not a child.
The maximum penalty for grooming is 10 years imprisonment. However, if the child is under 14 years of age the penalty increases to 12 years.
Carly’s Law
In 2017 the Australian Parliament passed the Criminal Code Amendment (Protecting Minors Online) Bill, also known as “Carlys Law”.
The aim of the legislation is to allow police to monitor for potential child abuse offences and exploitation incidents occurring online. Carly Ryan was a 15 year old girl who was murdered by a paedophile she met and had been speaking to online.
Often, these offences take place through the use of ‘catfishing’. That is, the creation of a false identity or profile to engage in communications with a child online in order to establish a relationship with the child.
Carly’s Law is focused on targeting the planning or preparation stage of these offences. Section 474.25C of the Criminal Code Act 1995 makes it a criminal offence to use a carriage service to prepare to commit or plan to commit an act on a person under 16 years of age that either causes harm to the child, procures the child for sexual activity, or causes the child to engage in sexual activity. The maximum penalty is 10 years imprisonment.
Carly’s Law also provides police with tools they need to investigate these offences. This includes search warrants and the ability to intercept and access telecommunications.
The law also allows police to use various forms of surveillance to gather evidence against individuals they suspect have the intention to cause harm to children online. This extends to law enforcement officers assuming the identity of a fictitious child to interact with adults on the internet or social media.
Conclusion
In NSW, ‘catfishing’ itself is not the primary offence, instead it can be a method used to commit other crimes. The law focuses on the harmful actions and consequences that stem from the motivations behind ‘catfishing’, rather than the act of creating a fake online persona.
Notwithstanding this, there are growing calls to introduce legislation to criminalise catfishing. This is because even when catfishing is not grounded in a motivation to harass, defraud, or attempts to commit sexual offences against children, it can still cause significant emotional distress to victims.
Ultimately, with complex advances in technologies, including the use of AI to assist in creating fake online personas, it is expected that the legal landscape around catfishing will continue to evolve.
If you or someone you know needs expert legal advice, contact us today for a free Ask Arthur Consultation.
Written by Ruby Bickford.
