Fake social media accounts : legal and ethical issues

Whether you believe fake social media accounts are rife and threatening or overhyped and futile, as our own addiction to social media increases, so too do opportunities for scammers, bullies and criminals. Whether the fake account is designed to capture and exploit personal information (extortion or blackmail), abuse or cause offence (trolling or hate speech), or simply adopt another life for a period of time, fake profiles are everywhere – so much so, that we now look for ‘the real [celeb name]’ in order to find the genuine account.

Who is at risk from fake social media accounts?

We tend to associate ‘fake accounts’ with celebrity status and whilst celebrities are indeed a target, so too is the average person. According to CNN, Facebook took down over 3.8 billion fake profiles/pages in 2018 and over 5.4 billion in 2019, so the problem is endemic.

Is it illegal to set up a fake social media profile?

It is therefore surprising perhaps, that setting up a fake social media profile is not, in itself, illegal. Fake profiles are interesting from a legal point of view – the cyber world has exploded so rapidly that our legislation is struggling to keep up to date; our Computer Misuse Act was enacted in 1980, our Copyright, Designs and Patents Act and our Malicious Communications Act both date from 1988, our Fraud legislation is 2006 and we have only just recently updated our data protection legislation in 2018.

Privacy Laws

What is still desperately missing in our digital world, is an update to our almost non-existent privacy laws. We don’t have one specific law that can help, we have to look to rely on one of the following:

1. Violation of the social media platform’s rules – each social media platform has its own rules of service. Compliance with these rules is mandatory and establishing a breach of them is probably the simplest way (in terms of speed, cost and time management) to get a fake account removed or suspended. The social media platforms want to be seen to be policing fake accounts and enforcing people’s rights and putting this into their hands can be an effective way of getting fake sites shut down. Facebook, for example, specifically states that individuals should only have one account and that it is against their ‘community standards’ to have more than one account.
2. Civil laws – our legal system is complicated and legal advice should be taken if anyone is concerned.
   1. IP infringement – use of copyright images or trade marks without the owner’s permission also violates the social media platforms’ rules and they each have their own process to report potential infringements. This is applicable even if the fake account uses photos or images taken from your own individual profile. Some countries recognise ‘personality rights’ as a registrable and enforceable IP right, but the UK struggles with this concept. It is however, possible to enforce some level of ‘personality right’ provided that the personality concerned has a reputation which is being abused or misused by the fake account.
   2. Misrepresentation – at law, a misrepresentation is an untrue statement of fact or law made by Party A (or its agent) to Party B, which induces Party B to enter a contract with Party A thereby causing Party B loss. ‘A contract’ doesn’t have to be a contract to purchase goods or services can be all manner of different things, provided that the formal requirements of a contract are fulfilled. The misrepresentation can be ‘fraudulent’, where a false representation has been made knowingly, or without belief in its truth, or recklessly as to its truth; or ‘Negligent’, where a representation is made carelessly and in breach of duty owed by Party A to Party B to take reasonable care that the representation is accurate; or ‘innocent’, where a misrepresentation is made that is neither fraudulent nor negligent.
3. Criminal laws: Cybercrimes are the UK’s fastest growing crimes, they are complicated and technically highly expert. The first thing for anyone to do if they are concerned about their identity being stolen is to contact the police.
   1. Identity theft – is when someone steals your personal information or possessions so they can use your identity
   2. Harassment – Harassment is unwanted behaviour which you find offensive or which makes you feel intimidated or humiliated
   3. Malicious communications – is where someone sends a letter or any other form of communication that is indecent or grossly offensive, threatening or contains information which is false or believed to be false.
   4. Computer misuse offences – cover a range of offences including hacking , computer fraud, blackmail and viruses.

The good news is that although our laws might be struggling to catch up, our law enforcement agencies are on the ball. The Information Commissioner’s Office has a Criminal Investigation Unit which is manned by serving police officers and works with the police in terms of theft of personal data; the police and fraud squad routinely prosecute a range of criminal behaviour online and the Crown Prosecution Service has issued new guidelines regarding online abuse and harassment. Within these guidelines, the CPS calls for the police to continue to bring prosecutions where fake social media accounts are set up with the intention of causing harm or distress to another person, whether by bullying, defamation or blackmail.

So whilst setting up a fake social media profile is not, in itself, an illegal act, prosecutions are more likely to follow where the purpose of these profiles is harassment, to cause offence or otherwise breach our laws.

Take a look at our Personal Data page on our website on ways we can help with issues or contact a member of the team.