November 2, 2008 by Serena Wolfond
Last May in Brandon, Manitoba, police charged a high-school student with criminal personation after he set up a Facebook profile in his teacher’s name. The charge was laid on the conviction that the profile “contained enough information to cause some disadvantage to the teacher”.
Under the Criminal Code it is well established that impersonation alone is not bad. Criminal personation charges apply only to impersonation with criminal intent; where the impersonator intends to either personally profit or to harm his victim.
To conclude that criminal charges were justified in this case it is necessary to determine whether the disadvantage caused to the teacher by the student’s impersonation amounted to harm, and whether such harm was in fact intended.
The answers to these questions are instrumental to establishing a precedent in this new and complicated area of law.
While this case marks the first of its kind in Canada, we may look to the United States for direction as comparable charges were laid there in 2007. In the so called, “MySpace Suicide Case”, a mother used a MySpace account to impersonate a teenage boy and proceeded to harass a 13-year-old girl who had bullied her daughter. After receiving a hurtful message from the fabricated boy, the 13-year-old hung herself. The impersonator was criminally charged with violating a federal anti-computer hacking statute.
It is apparent that the harm which ensued in the MySpace case was far more severe than in the Facebook case, where the teacher was said to have merely suffered “some disadvantage” as a result of the student’s actions. Moreover, the impersonator in the MySpace case clearly intended to harm her young victim, while in the case at hand, the teen’s intent to harm his teacher is vague. Accordingly, it is difficult to conclude that the legal consequences ought to be the same in the two cases.
Accordingly, rather than perceiving the Facebook case as a matter of criminal personation, we should view it as a case of moral rights infringement under copyright law. The student’s actions had the effect of attributing his teacher’s name to a profile that the teacher did not create, and thereby associated the teacher with information and/or images that he did not endorse. Both of these results entailed undermining the teacher’s professional integrity and appropriately warrant the student being held civilly liable to his teacher and/or school, but do not justify criminal prosecution.
The imposition of these sanctions upon the student, in conjunction those for moral rights infringement, allow for a more appropriate precedent to be set than triggering the application of criminal law for this type of “cyber-prank”.