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Fake Online Profiles Prompt Call for Reviving Criminal Libel Law:

The Bergen Record reports:

Assemblyman Kevin O'Toole, R-Wayne, has drafted a bill making it a crime to knowingly post false information about another individual on a Web site. [The text has not yet been finalized, so I couldn't get my hands on it -EV] ...

In February, someone created a phony profile of 12-year-old Monirae Hickey of Nutley on MySpace.com, posting her name, cellphone number and a photo of a provocatively dressed woman; the page said she was a stripper. As a result, the girl was barraged with phone calls....

For a bit more on the constitutional status of criminal libel laws, see here.

Isaac (www):
IANAL, but surely that sort of activity is already illegal/actionable as libel, no?
9.21.2006 2:48pm
Eugene Volokh (www):
It can lead to a civil lawsuit, but those can cost the injured party a lot of money, money they may never be able to recover even if they win the case. Criminal prosecution doesn't cost the injured party much, and might deter (and punish) even some people who are pretty confident that they won't get civilly sued.
9.21.2006 3:01pm
tjvm:
From the article, it seems like the problem they're dealing with is impersonation more than libel. There's an aspect of libel, in that unflattering statements are made, but the statements are particularly harmful because they purport to come from the person being denigrated.

Accordingly, it seems that they could address the problem with a narrower law prohibiting speech that purports to come from someone else. (Note: I'm not talking about prohibiting anonymous or pseudonymous speech; I'm talking about speech that purports to come from a specific, real person other than yourself.)
9.21.2006 3:15pm
Kierkegaard (mail):
tjvm,

That I think becomes a problem since satire often uses exactly that method of impersonation, especially on the web.
9.21.2006 3:19pm
blog fiend (mail) (www):
Reminds me of that Harriet Miers' Blog that popped up when President Bush nominated Miers to SCOTUS. Not quite as serious as the 12-year-old girl incident to be sure. But, according to Ann Althouse in a podcast whose number I can't recall, some people, law professors even, believed it to be a genuine blog by Miers.
9.21.2006 3:21pm
JRL:

Assemblyman Kevin O'Toole, R-Wayne, has drafted a bill making it a crime to knowingly post false information about another individual on a Web site.


This could shut down nytimes.com.
9.21.2006 3:33pm
Tennessean (mail):
I guess the question Isaac might be getting at is why posting on a web site would be worthy of a particular crime, as opposed to having criminal libel laws generally (as you discuss in your link).

Indeed, why not just make malicious libel a crime and then throw the web business into the sentencing scheme? That would be the conclusion I might reach after "[t]he state's Office of the Attorney General confirmed that ... [y]ou can seek relief by filing a defamation or harassment suit in civil court, but there are no criminal statutes in place."

Also, looking at the North Jersey article, can it possibly be true that "[i]t's perfectly legal to take an actual child's name, put it on a Web site and destroy that child's character by creating a slimy profile."

With the caveat that I am beyond my ken, might not N.J. Stat. § 2C:21-17 apply here ("A person is guilty of an offense if the person: (1) Impersonates another or assumes a false identity and does an act in such assumed character or false identity ... to injure or defraud another")?

Or just reinstate § 2A:120-1.
9.21.2006 3:35pm
drewsil (mail):
It seems to me that this type of activity should be treated as some type of assault. The purpose of the profile was not to libel the 12 year old, or even to mock her. Rather the point was to ensure that she recieved degrading phone calls and subject her to psychological abuse. Passing overbroad libel laws does not seem to be the appropriate answer.
9.21.2006 3:35pm
Csmith:
I had the same reaction as tjvm (focus on the impersonation angle) although I am not sure that this incident is anthing more than a 21st century version of writing "for a good time call Julie at xxx-xxxx" on the bathroom stall.

In response to Kierkegaard - a libel statute would clear place satire ala the Harriet Miers Blog in jeopardy while satire would be a defense to an impersonation offense which included an element of the intent to make others think the offender was the person being impersonated.
9.21.2006 3:48pm
Fub:
Until about 25 years ago California had a criminal libel statute and a related constitutional provision.

California's original constitutional provision at least arguably reflected the historical John Peter Zenger case. Omitting venue specifications, the portion of the constitutional provision regarding criminal libel was:

Article I, Section 9

Liberty of Speech and of the Press

... In all criminal prosecutions for libels the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact. ...

(Constitution of 1849, Art. I, Sec 9, revised 1879)
While it did indicate that truth alone was not a complete defense, it also expressly gave the jury the right to determine the law.
9.21.2006 4:38pm
Tom Holsinger (mail):
I agree with drewsil. It's not merely assault, but a variety of indecent assault on a minor (give the perp a sex offender record), and possibly hate speech based on gender.

States may give special criminal law protection to especially vulnerable groups such as minors without violating the Constitution.
9.21.2006 5:12pm
Chris Lansdown (mail) (www):
Wouldn't this be more harassment than assault?
9.21.2006 5:26pm
Tom Holsinger (mail):
Threatening conduct and statements without physical contact are assault, and that includes threats of wrongful conduct by others.

I believe harassment is a term used only in civil and family law.
9.21.2006 5:42pm
whit (mail):
Tom, not true.

Both Hawaii and Washington (two off the top of my head) have criminal law statutes called "harassment".

WA is basically a "threats" type of statute. Hawaii is an unwanted touching that doesn't rise to the level of an assault (with injuries)
9.22.2006 1:10pm
Fub:
whit wrote:
Both Hawaii and Washington (two off the top of my head) have criminal law statutes called "harassment".

WA is basically a "threats" type of statute. Hawaii is an unwanted touching that doesn't rise to the level of an assault (with injuries)
CA Penal Code uses "harass" in stalking statute:
646.9. (e) For the purposes of this section, "harasses" means engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.
Seems it could fit facts of this case without much shoehorn deployment.
9.22.2006 2:07pm
Laura C. (mail):
I'm not sure this behavior can constitute assault. Assault is primarily an attempt crime, designed to punish the attempt of battery. Threatening statements made without physical proximity are generally not assaults (phone threats, etc.), so statements made on the internet shouldn't qualify.
I also don't see this as harassment, because until the victim sees the website and experiences the terror, alarm, etc., a crime has not occurred. If we’re going to pass a law to criminalize this behavior, the minimum conduct should be the creation of the website, irrespective of who may or may not see it.
It seems to me that putting up illicit, dangerous profiles of young girls is also a crime of attempt. The question is, attempt to what? The problem is that any potential offense must have a conduct component that is proximate to the victim’s injury, and it seems that the conduct which injures here is really being committed by the people who view the website and act on it, not the person who creates it.
9.22.2006 3:27pm
SC opinioner:
Keep in mind that this website was more than likely put up by one of her peers/classmates so this probably isn't the best test case supporting legislation so that we can "go after internet predators."
9.22.2006 3:40pm
whit:
fwiw, i said both states have crimes (criminal code) called harassment. neither would apply in this case.

a statute that would apply is some Criminal Impersonation statutes.

WA state's statute defines crim impers as "assumes a false identity and does an act in his or her assumed character with intent to defraud another OR for any other unlawful purpose"

this person certainly assumed a false identity, and did an act in that identity. was the website posting an "unlawful purpose" would be the question, i guess. I am pretty sure some crim impers statutes just reference doing an act in another's identity with intent to harm that person.

i think Colorado' statue might apply. it requires an act of impersonation wotjh the intent to unlawfully gain a benefit for himself or another person OR (emphasis mine) to INJURE OR DEFRAUD ANOTHER PERSON"

certainly, this internet posting done under this other person's identity was an act of impersonation and it did injure the victim.

of course, it didn't happen in colorado, so... :)

i don't think you need an internet specific statute, like referenced in the original post. just a crim impers statute that includes "causing a person harm" or "harm to their reputation " or something based on the false impersonation.

I think the colorado law would apply, in the same way as if you dressed up like Sally Smith, said you were sally smith, then stripped naked and ran through the streets, making people think Sally smith was a streaker (with a hairy chest)
9.22.2006 6:17pm