2.10 Impersonation

Impersonation is primarily an act of cheating and fraud. However, when women are targeted through impersonation, the gendered nature and impact of the fraud on women’s rights and their online participation should be duly considered by the court.

Further, when impersonation is accompanied by offenses such as stalking, NCIID, morphing, doxxing, etc., the harm to the privacy, bodily integrity, and reputation of the affected woman should be given primacy instead of framing the offense as one concerned with outraging modesty or publishing obscene or sexually explicit materials.

Since impersonation is primarily an issue of cheating and identity theft, charges can be brought under Section 415 of the Indian Penal Code (IPC), which defines cheating, and Section 417, which prescribes the punishment for cheating. Further, Section 416 makes cheating by impersonation a specific offense. In certain cases, Section 66D of the Information Technology (IT) Act, 2000 (IT Act), which penalizes cheating by impersonation done using a computer device or resource, may also apply.

Most impersonation cases that have come up before courts in India so far have involved creating fake social media profiles in the name of the complainant women and uploading their nude or morphed pictures through such accounts. Even when courts have correctly recognized the infringement of privacy and loss of reputation that women suffer as a result of such acts, they have tended to treat these as cases of dissemination of obscene or sexually explicit materials under Sections 67 and 67A of IT Act, and not of cheating by impersonation and identity theft.

2.10.4.1. Kalandi Charan Lenka v. State Of Odisha (2017)¹⁰Kalandi Charan Lenka v. State Of Odisha, BLAPL No.7596 of 2016, judgment dated 16 January 2017, Odisha High Court.

The accused in the case sent obscene and vulgar text messages to the victim, and also created a fake Facebook account in her name and uploaded her morphed images to the profile as public posts. The court correctly recognized that the acts of the accused, especially the creation of a fake Facebook account, were intended to intimidate the complainant, and that these acts had caused mental shock and suffering to the victim. However, while determining the guilt of the accused, the court deemed that the act of uploading morphed photos through a fake Facebook account in her name as an offense of transmission of sexually explicit or obscene images under Section 67 and 67A of the IT Act. As mentioned earlier, conviction under these Sections does not address the violation of privacy and bodily integrity of the victim, and the loss of reputation resulting from the act of impersonation coupled with morphing.

In other cases, courts have tended to pass patronizing remarks such as “no prudent woman would post her nude photographs in social media”¹¹Mohammad Nasar v. The State Of Andhra Pradesh, Criminal Petition No.3125 OF 2020, judgment dated 24 August 2020, Andhra Pradesh High Court. while establishing the guilt of the accused for impersonating the complainant and posting her morphed images. Such remarks arise due to misidentification of the harm caused by impersonation, particularly, the harm caused to women against whom the offense is committed.

2.10.4.2 Subhranshu Rout @ Gugul v. State Of Odisha (2020)¹²Subhranshu Rout @ Gugul v. State Of Odisha, BLAPL No.4592 OF 2020, judgment dated 23 November 2020, Odisha High Court.

This is an example of a case in which the court took note of the infringement of privacy resulting from the act of impersonation and uploading of the morphed images of the victim. Most importantly, the court desisted from considering the issue as one of dissemination of obscene or sexually explicit materials.

Different jurisdictions have started recognizing the menace of online impersonation, particularly against women and girls. Some countries deal with it using existing statutory provisions, especially criminal law provisions related to cheating, identity theft, fraud, intimidation, stalking, etc. For example, the US uses a slew of legislation such as the federal Identity Theft and Assumption Deterrence Act, 1998; the Communications Act, 1934; the federal Interstate Stalking Punishment and Prevention Act, 1996; and the Computer Fraud and Abuse Act, 1986, to deal with online impersonation. Similarly, in the UK online impersonation against women is dealt with under the Malicious Communication Act, 1998, and the Protection from Harassment Act, 1997, as a form of harassment.

On the other hand, a few regions have enacted specific laws to deal with the offense. The state of Oklahoma in the US enacted the Catfishing Liability Act, 2016. This statute imposes liability on “any person who knowingly uses another’s name, voice, signature, photograph or likeness through social media to create a false identity without such person’s consent […] for the purposes[s] of harming, intimidating, threatening or defrauding”.¹³Catfishing Liability Act of 2016, Okla. Stat. tit. 12 § 1450, B. (Oklahoma, United States). This is a civil provision and allows the impersonated person to seek an injunction and monetary damages, in addition to a minimum award of USD 500.¹⁴Catfishing Liability Act of 2016, Okla. Stat. tit. 12 § 1450, B. (Oklahoma, United States). In Australia, Section 474.25C, inserted in the Criminal Code Act, made it an offense to use telecommunication service to impersonate one’s age and gender and commit any act to prepare or plan to cause harm to, engage in sexual activity with, or procure for sexual activity, persons under the age of 16.