Fake profiles on social networks can be a crime

Fake profiles on social networks are not criminal per se, but this depends on their activities. If they engage in harassing, harassing or humiliating a person, they commit a crime and can be punished by the Penal Code.

The Law of Sexual Freedom or the “Only Yes is Yes” law approved this year in Spain has changed the paradigm on the crime of sexual assault or rape and has placed consent at the epicenter of the criminal type. Also has included new forms of aggressionlike the increasingly frequent sexual assault over the internet.

According to the Macro-survey on Violence against Women 2019, one in two women in Spain has suffered sexual violence and 40.4% have reported sexual harassment. Part of this harassment occurs through false profiles created on the internet and social networks, with which the law also seeks to protect victims behind the screens.

What modification does the Sexual Freedom Law make to the Penal Code

The Yes is Yes law, published in the BOE on September 6, establishes that “he who harasses a person carrying out insistently and repeatedly, and without being legitimately authorized, any of the following behaviors and, in this way, alter the normal development of their daily life:

  1. Watch her, chase her, or seek her physical proximity.
  2. Establish or attempt to establish contact with it through any means of communication, or through third parties.
  3. Through the improper use of your personal data, acquire products or merchandise, or contract services, or have third parties contact you.
  4. Attempt against their freedom or against their assets, or against the freedom or assets of another person close to them.

When the victim is in a situation of special vulnerability due to age, illness, disability or any other circumstance, a prison sentence of six months to two years will be imposed.

To this a new section has been added, which introduces the internet component:

«5 (new). Whoever, without the consent of its owner, uses the image of a person to make advertisements or open fake profiles on social networkscontact pages or any means of public dissemination, causing the same situation of harassment, harassment or humiliation, will be punished with a prison sentence of three months to one year or a fine of six to twelve months.»

With this paragraph, fake profiles on social networks used to harass enter for the first time in the Spanish Penal Code. “Until now, what existed was a crime of usurpation of marital status, applicable to many assumptions, but without specifically referring to profiles on social networks,” he says. Jose Maria de Pablo, criminal lawyer. The magistrate sees it as logical, “because the crime of usurpation of marital status comes from the Criminal Code of 1870, long before the existence of social networks, and has remained almost the same in successive codes.”

This is the criminal response to the digital violence that the increase in the use of mobile phones and social networks has extended beyond the face-to-face.

Fake profiles on social networks: when they commit the crime of usurpation

Before the modification of the Penal Code that implies this section of the law of ‘Only if it is Yes’, there was already another crime that punishes a generic type of falsehood, that of usurpation of marital status (current article 401 of the Penal Code). It is committed when a person pretends to be another in order to use her rights to obtain a benefit or to cause damage. De Pablo understands that this could be applied to the creation of false profiles, but only in those cases in which the intention was to obtain a benefit or cause damage.

On the other hand, the new precept of Law 10/2022 makes a more express reference to social networks and more specifically in which cases false profiles will be punished. It is no longer about obtaining a generic benefit or harm, but rather the creation of a false profile to harass, punish, or humiliate to another.

In De Pablo’s opinion, the main difference between the old identity usurpation and the new crime is in the author’s intention: before it was about achieving a generic benefit or harm, while the new crime punishes when the intention is to harass, harass or humiliate the victim.

impersonation vs. usurpation in social networks

If we stick to the Penal Code, the creation of a fictitious profile (with false data) on a social network does not have to be considered criminal. The creation of false profiles on social networks does not necessarily imply the existence of a usurpation of marital status, which is what article 401 really punishes.

There are two analogous legal concepts, which should be distinguished: impersonation and identity theft. We talk about impersonation when a false profile is opened on social networks in order to mask the real identity. Even if there is a theft of rights from the impersonated person, there is no usurpation until that account begins to act as if it were the impersonated person. When this happens, we talk about identity theft, because there is appropriation of the identity of the other person and the scammer performs acts pretending to be this person. If in this action harassment, harassment or humiliation towards the victim is observed, the crime corresponds to the one introduced by the Law of Sexual Freedom in the Penal Code.

Parody accounts: can these false profiles on social networks be a crime?

Twitter, for example, allows parody accounts on its platform. It understands by such those profiles that show “another person, group or organization in their profile in order to debate, make satires or share information about said entity”. They admit that these accounts can use elements of a third party identity, but they must indicate that the account is not affiliated with the subject of the profile and demands that they be distinguished as parody in the account name and also in the bio.

The law also indicates that they cannot be prohibited or punished, and this is also how De Pablo understands it. As long as they are only a parody account, their intention is to make humor, and the identity used corresponds to a person of public relevance -a politician, for example-. “First, because of the conflict with the right to freedom of expression. But above all because the intention would be to make humor –animus iocandi-, more than harassing, harassing or humiliating, which is what is punished now”, explains the lawyer.

“Another thing is that the parody account is not mainly about humor but about harassing or humiliating, or that the person affected is not a person of public relevance, in which case they could be punished for this crime,” says De Pablo.

Fake profiles on social networks can be a crime