Under existing California Penal Code Section 528.5, a person who knowingly and without consent credibly impersonates another person via the Internet or other electronic means in order to harm, intimidate, threaten, or defraud a third person is guilty of a public offense punishable by a fine not exceeding one-thousand dollars, or by imprisonment in a county jail not exceeding one year, or both. Section 528.5 includes a private right of action.
California Assembly Bill 695 would add Section 1708.87 to the California Civil Code, creating a new private right of action against a person who knowingly and without consent credibly impersonates another person via the Internet or by other electronic means.
The proposed legislation:
- would provide standing to the impersonated person, any person whose likeness is used and any person induced to believe that the defendant is the person being impersonated, provided the plaintiff suffers general or special damages as described in Civil Code Section 48a,
- omits the specific intent requirement of Penal Code Section 528.5 and its application of the compensatory damages and equitable relief provisions of California’s Comprehensive Computer Data Access and Fraud Act (Penal Code Section 502), and
- would authorize courts to award reasonable attorneys’ fees and court costs to a prevailing plaintiff, in contrast with Penal Code Section 528.5 in which attorney fees are available in any civil action by reference to Section 502, paragraph (2) of subdivision (b).
As with Penal Code Section 528.5, under proposed Section 1708.87:
- An impersonation is considered “credible” if another person would reasonably believe, or did reasonably believe, that the defendant was or is the impersonated person, and
- “Electronic means” includes opening an email account or creating an account or profile on a social network using another person’s name.
The text of the proposed legislation may be found here.