An American woman in New Jersey faces 18 months in prison for impersonating her ex-boyfriend on Facebook and posting defamatory comments in his name.

The question is whether a person can be held liable in South Africa for impersonating another person on a social media website?

The answer depends on whether:

  • impersonating another person online infringes a legal right of that person;
  • and whether the impersonator can be held liable for such an infringement.

[private]The Right to Identity

South African law gives a person the right to identity, although it is generally protected under the right to privacy. This right is infringed if any part of a person’s identity is used in a way that does not fit with the characteristics of the actual person concerned. A part of a person’s identity is anything that makes that person unique when compared to other people. The parts of a person’s identity that are relevant to their online identiy are their name, likeness and life history.

There are two ways that a person’s identity can be infringed. First, is when the person is publically misrepresented. Second is when part of the person’s identity is used by someone else for personal gain without that person’s permission. Impersonating someone else online can infringe their identity in either or both of these ways.

Civil or Criminal Law

A person can be held liable for infringing another person’s identity in terms of civil law or criminal law. In terms of civil law, a person can sue another person in delict for infinging their identity. However, impersonating someone else online will only be a delict if:

  • it causes harm to that person;
  • they were impersonated intentionally;
  • and a court finds that the impersonation was wrongful because it was against society’s morals.

In terms of criminal law, the state can prosecute someone under the crime of crimen injuria for infringing another person’s identity. Impersonating someone else online can be prosecuted in this way if:

  • it damages that person’s reputation;
  • they were impersonated intentionally;
  • and the damage to that person’s reputation is serious.

Legal Consequences

A fake social media account, on a website like Twitter or Facebook, could result in legal action against the impersonator in terms of either civil or criminal law.

However, this pre-supposes that one is able to ascertain the true identity of the impersonator. This is not often easy.

The impersonator could face a monetary award in favour of the impersonated person if they are held liable in terms of civil law or criminal punishment if they are held liable in terms of criminal law.

There is no reason why someone could not be held liable for impersonating a celebirty or another high profile person online, however a court may find that the impersonation is not wrongful or serious enough if a person is already in the public space.

social media policy should prevent your company from being held liable for your employees impersonating other people online.[/private]


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