By Gil Zvulony, Toronto Internet Lawyer
I recently met a gentleman who was in an “internet only” romantic relationship with someone for seven years. He says he loved her and wanted to marry her. It turns out, this woman never existed. The person he was talking to all those years was lying to him. The photos were not of her. She was not single and in love; rather she was married with two kids and didn’t look anything like the woman in the photos. (Please watch a clip of the story City TV did about this incident below).
The term “catfishing” has been applied to such scenarios. The Urban Dictionary defines “catfishhing” as:
The phenomenon of internet predators that fabricate online identities and entire social circles to trick people into emotional/romantic relationships (over a long period of time).
Possible motivations: revenge, loneliness, curiosity, boredom
The term catfishing was inspired by the 2010 documentary “Catfish.”Gwen was worried that her online boyfriend was a phoney after she saw a TV program about Catfishing.
The legal question arises whether the perpetrator can be sued by the target victim for “catfishing”? (While, catfishing usually involves the stealing of someone’s identity to trick the the target victim, I am not going to address the issue of identity theft of third parties in this article. Nor will I address the issue of whether catfishing breaches any criminal laws) At it’s core, “catfishing” is nothing new. I am reminded of the eighties comedy Dirty Rotten Scoundrels. Simply put, catfishing is wilful deception amplified by the internet.
Is it Illegal to Lie?
Before exploring whether catfishing is illegal, we need to first ask if lying is illegal? The answer, like most legal questions, is that it depends on the circumstances. In most cases, being lied to is not actionable; in other words you can not sue for being the victim of a lie (i.e.he lied that he had brown eyes). However, when that lie is made to try and get you to part with your money, then that lie is called fraud and is illegal.
What about lies that don’t have a monetary component? What about lies where the intention and result is simply to mess with someone’s mind or for some “thrill”? What if the harm was emotional, stressful? As it turns out the law may give certain victims of catfishing a civil remedy. I am not aware of any law cases dealing directly with this issue but there are some pre-internet precedents. The cases were based in the tort of “intentional infliction of mental suffering”.
Intentional Infliction of Mental Suffering
For intentional infliction of mental suffering to succeed a plaintiff must prove that there was a) flagrant or outrageous conduct, b) that conduct was intended to produce harm (reckless indifference is not enough), and c) that conduct resulted in a visible and provable medical illness.
Serious cases of catfishing might qualify as an intentional infliction of mental suffering. The deception should be substantial. A minor deception, ie someone lying about their height or weight, would not qualify. For example, the plaintiff succeeded in a 1922 case (Bielitski v. Obadiak,  S.J. No. 79, 65 D.L.R. 627 (Sask. C.A.)) where the defendant spread a false rumour that the son of the plaintiff killed himself.
The purpose of the lie should also be calculated to inflict harm. In some cases, this may be difficult to prove. It is possible that the fact that a perpetrator honestly “didn’t mean to hurt anybody” might be a valid defence; even if the perpetrator was “recklessly indifferent” to the potential harm (see Piresferreira v. Ayotte, 2010 ONCA 384).
Lastly, the requirement for a provable mental illness means that most, except for the most egregious of catfishing cases, will not be actionable. Stress and anguish are not enough.
In the case of Young v. Borzoni et al, 2007 BCCA 16 (CanLII), the British Columbia Court of Appeal stated the following:
Recognizable psychiatric illnesses, such as are defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) for example, amount to visible and provable illnesses for the purposes of the tort of the intentional infliction of mental suffering. However,emotional stress, mental anguish and despair […] are not generally accepted as amounting to “visible and provable illness” for the purposes of the tort of the intentional infliction of mental suffering.
With the growth of online dating sites, social networking, and society’s growing comfort with internet only relationships, it seems inevitable that the courts will someday have to deal with compensating victims for the emotional harm caused by catfishing.