{"id":366,"date":"2023-08-09T17:33:21","date_gmt":"2023-08-09T17:33:21","guid":{"rendered":"https:\/\/projects-dev.itforchange.net\/online-violence-gender-and-law-guide\/?page_id=366"},"modified":"2024-10-29T12:08:21","modified_gmt":"2024-10-29T06:38:21","slug":"2-10-impersonation","status":"publish","type":"page","link":"https:\/\/projects.itforchange.net\/online-violence-gender-and-law-guide\/module-2-typologies-of-online-gender-based-offenses-in-law\/2-10-impersonation\/","title":{"rendered":"2.10 Impersonation"},"content":{"rendered":"
Navigate:Online Gender-based Violence Judicial Resource Guide<\/span><\/a><\/span><\/div><\/div><\/div><\/div><\/div><\/div>
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2.10.1 What is impersonation?<\/h3>\n
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Impersonation is a common form of gendered abuse that women face online, and often accompanies or facilitates other offenses such as cyberstalking, doxxing, intimidation and threats, and morphing.1<\/a><\/sup>Kimble, M.R. (2016). Online Gendered Harassment and Violence Naming the Harm and Punishing the Behavior.<\/i> University of Michigan.\u00a0https:\/\/deepblue.lib.umich.edu\/bitstream\/handle\/2027.42\/134723\/madeleik.pdf?sequence=1<\/a> <\/span> Impersonation refers to the act of pretending to be someone else or falsifying the identity of a person \u201cwith the intention of harming, defrauding, intimidating or threatening anyone\u201d.2<\/a><\/sup>Panwar, K., & Sihag, V. K. (2020). Changing forms of Cyber Violence against Women and Girls. The Indian Police Journal<\/i>, 111. p. 116. https:\/\/bprd.nic.in\/WriteReadData\/userfiles\/file\/202104200330035982091ipj1.pdf#page=117<\/a>. <\/span> The internet, by giving users the option to remain anonymous and create multiple identities, makes impersonation easy and its detection difficult.3<\/a><\/sup>Ajmani, N. (2011). Rethinking the Rangel Standard in the Age of the Internet. Cyberstalking and Free Speech<\/i>. https:\/\/scholarsbank.uoregon.edu\/xmlui\/bitstream\/handle\/1794\/11760\/Ajmani.pdf?sequence=1&isAllowed=y<\/a> <\/span><\/p>\n

Women face harm from impersonation in two ways. One, the perpetrator may impersonate the identity of someone with whom the woman is close or is likely to establish contact. This is a common means adopted by cyberstalkers to get a woman to disclose personal details or share personal images, which can be used to commit further offenses such as doxxing, intimidation, and non-consensual intimate image distribution (NCIID).4<\/a><\/sup>Kimble, M.R. (2016). Online Gendered Harassment and Violence Naming the Harm and Punishing the Behavior.<\/i> University of Michigan. https:\/\/deepblue.lib.umich.edu\/bitstream\/handle\/2027.42\/134723\/madeleik.pdf?sequence=1<\/a>.<\/span> This is commonly referred to as catfishing.<\/p>\n

The second way in which women face harm from impersonation is when the perpetrator masquerades as the woman to her friends, family, other public connections, and on online sites, usually with an intention to damage her reputation or credibility.5<\/a><\/sup>Kimble, M.R. (2016). Online Gendered Harassment and Violence Naming the Harm and Punishing the Behavior.<\/i> University of Michigan. https:\/\/deepblue.lib.umich.edu\/bitstream\/handle\/2027.42\/134723\/madeleik.pdf?sequence=1<\/a>.<\/span> By faking the identity of the woman, the perpetrator may send offensive messages and post lewd or inflammatory content online, which could, in turn, invite harsh responses, equally offensive and lewd comments, and threats from the recipients of such messages.6<\/a><\/sup>Kimble, M.R. (2016). Online Gendered Harassment and Violence Naming the Harm and Punishing the Behavior.<\/i> University of Michigan. https:\/\/deepblue.lib.umich.edu\/bitstream\/handle\/2027.42\/134723\/madeleik.pdf?sequence=1<\/a>.<\/span> This can worsen the woman\u2019s relationship with her contacts, invite social ridicule, damage her reputation and credibility, and even lead to offline harm.7<\/a><\/sup>Kimble, M.R. (2016). Online Gendered Harassment and Violence Naming the Harm and Punishing the Behavior.<\/i> University of Michigan. https:\/\/deepblue.lib.umich.edu\/bitstream\/handle\/2027.42\/134723\/madeleik.pdf?sequence=1<\/a>.<\/span> Some cases of online appropriation of a woman's identity also involve posting morphed pictures on fake social media accounts created in her name in order to tarnish her reputation in the eyes of her network, and to invite unwanted attention and harm from others.8<\/a><\/sup>Sambashivam, N., et al. (2019). \u201cThey Don\u2019t Leave Us Alone Anywhere We Go\u201d: Gender and Digital Abuse in South Asia,<\/i> pp. 7-8. Proceedings of the 2019 CHI Conference on Human Factors in Computing Systems. https:\/\/dl.acm.org\/doi\/abs\/10.1145\/3290605.3300232<\/a>.<\/span> Such acts of impersonation can force women to limit their online presence, including by deactivating their social media accounts.9<\/a><\/sup>Sambashivam, N., et al. (2019). \u201cThey Don\u2019t Leave Us Alone Anywhere We Go\u201d: Gender and Digital Abuse in South Asia,<\/i> pp. 7-8. Proceedings of the 2019 CHI Conference on Human Factors in Computing Systems. https:\/\/dl.acm.org\/doi\/abs\/10.1145\/3290605.3300232<\/a>.<\/span><\/p>\n<\/div>\n<\/div><\/div><\/div>

2.10.2 What is a gender-sensitive way to read a case of impersonation?<\/h3>\n
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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\u2019s rights and their online participation should be duly considered by the court.<\/p>\n

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.<\/p>\n<\/div>\n<\/div><\/div><\/div>

2.10.3 Which laws are applicable?<\/h3>\n
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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.<\/p>\n<\/div>\n<\/div><\/div><\/div>

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  1. Sections 318 and 319 of the BNS (Cheating): <\/b>Under the IPC, Sections 415, 416, and 417 describe cheating and its punishment. However, under the BNS, the provisions that address cheating are Sections 318 and 319. The elements of the offense are the same under both laws. Section 318 defines cheating as the act of deceiving someone through fraud or dishonesty, leading the deceived person to deliver property, consent to retain the property, or act or omit in a way that causes harm or damage to body, mind, reputation, or property. Dishonest concealment of facts also constitutes deception under this provision. Illustrations clarify various scenarios where one induces others to deliver goods or money through false pretenses, such as misrepresenting identity, quality of goods, or intentions. Section 319 defines cheating by personation as the act of deceiving someone by pretending to the identity of oneself or another person.be another person, knowingly substituting one person for another, or misrepresenting\u00a0<\/span><\/li>\n<\/ol>\n\t\t\t\t<\/div>\n\t\t\t<\/div>\n\t\t<\/div>\n\t\t<\/div>\n<\/div>\n<\/div><\/div>

    2.10.4 How have courts dealt with cases of impersonation?<\/h3>\n
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    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.<\/p>\n

    2.10.4.1. Kalandi Charan Lenka v. State Of Odisha<\/em> (2017)10<\/a><\/sup>Kalandi Charan Lenka<\/i> v. State Of Odisha<\/i>, BLAPL No.7596 of 2016, judgment dated 16 January 2017, Odisha High Court. <\/span><\/h4>\n

    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.<\/p>\n

    In other cases, courts have tended to pass patronizing remarks such as \u201cno prudent woman would post her nude photographs in social media\u201d11<\/a><\/sup>Mohammad Nasar<\/i> v.<\/i> The State Of Andhra Pradesh<\/i>, Criminal Petition No.3125 OF 2020, judgment dated 24 August 2020, Andhra Pradesh High Court. <\/span> 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.<\/p>\n

    2.10.4.2 Subhranshu Rout @ Gugul v. State Of Odisha<\/em> (2020)12<\/a><\/sup>Subhranshu Rout<\/i> @ Gugul v. State Of Odisha, <\/i>BLAPL No.4592 OF 2020, judgment dated 23 November 2020, Odisha High Court. <\/span><\/h4>\n

    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.<\/p>\n<\/div>\n<\/div><\/div><\/div>

    2.10.5 How have other jurisdictions dealt with impersonation?<\/h3>\n
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    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.<\/p>\n

    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 \u201cany person who knowingly uses another\u2019s name, voice, signature, photograph or likeness through social media to create a false identity without such person\u2019s consent [\u2026] for the purposes[s] of harming, intimidating, threatening or defrauding\u201d.13<\/a><\/sup>Catfishing Liability Act of 2016, Okla. Stat. tit. 12 \u00a7 1450, B. (Oklahoma, United States).<\/span> 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 500.14<\/a><\/sup>Catfishing Liability Act of 2016, Okla. Stat. tit. 12 \u00a7 1450, B. (Oklahoma, United States).<\/span> In Australia, Section 474.25C, inserted in the Criminal Code Act, made it an offense to use telecommunication service to impersonate one\u2019s 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.<\/p>\n<\/div>\n<\/div><\/div><\/div>

    Footnotes<\/h3>\n
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