Michael D. Moberly October 1, 2012
I’m confident there remain intangible asset practitioners and strategists like myself who, while possessing an operational familiarity of reputation risk and e-personation, relative to the various contributors and adverse consequences, may not be familiar with California’s Criminal E-Personation law passed in late 2010.
For intangible asset practitioners, it certainly should not rise to the level of ‘rocket science’ to recognize most company’s reputation and e-personation risks-threats have elevated considerably in the past decade, in terms of the speed which either can occur, and the adverse and costly consequences that are all but certain to follow.
Neither should there be unexpected outcomes in today’s increasing wired and interconnected environments, as there are countless means available to ever expanding categories and variously motive driven adversaries and antagonists to affect e-personation and its first cousin, reputation risk/harm utilizing the Internet. The particularly troublesome variant, e-personation, which in California at least, makes it unlawful to knowingly and without consent credibly impersonate another person through, or on an Internet website or by other electronic means with the intent to harm, intimidate, threaten or defraud others.
For me, the terms ‘credibly impersonate’ are the key factors in this particular law, and probably the one’s which are argued most in terms of distinguishing parody and satire from a genuine intent to perpetrate harm, intimidation, fraud, and/or threats. The California law describes an impersonation as being credible when another person comes to reasonably believe that the defendant was or is the person who is being impersonated.
As reliance on the internet increases globally, there is certainly no shortage of opportunities and ways for abuse to present themselves as e-personation and reputation harm/risk. Previously, individual or corporate victims have typically been left without adequate legal remedies – protection to stop these types of abuses. Now California, and other states’ laws, i.e., Pennsylvania, Texas, etc., will at least be better positioned to partially rectify this problem by
- expanding the current impersonation statute to include impersonation done on an Internet website or through other electronic means such as email, Facebook, Twitter, and other social media websites.
Needless to say, previous law, addressing false impersonation was certainly not conceived nor drafted with 21st technologies in mind, and therefore is largely outdated and of little use to effectively combat this expanding and often costly challenge.
More specifically California law makes it a crime to…
- falsely impersonate another in either his or her private or official capacity.
- knowingly access and, without permission, alter, damage, delete, destroy, or otherwise use any data, computer, computer system, or computer network in order to devise or execute any scheme or artifice to defraud,
- deceive, or extort, or wrongfully control or obtain money, property, or data.
Quite appropriately, California State Bar Associations’ recent (September 12, 2012) ‘IP and the Internet Conference’, speakers’ Timothy Yip, in-house counsel for Twitter, and Charles J. Harder from Wolf Rifkin, focused their respective presentations on legal issues and practical insights into the problems associated with online imposters, defamers, and infringers.
From a practical perspective, Mr. Yip and Mr. Harder recommended that…
- companies who are dealing with reputational harm on the Internet, such as in Yelp or Amazon reviews, should familiarize themselves with the features, practices, and policies of these sites.
- for example, when something appears a company does not like, it should preserve it immediately (e.g. screenshots) in case they want to bring further action.
- but, Mr. Yip and Mr. Harder respectively suggested, companies should not expect that the harmful or disparaging information will remain online for indeterminate periods of time.
- in addition, they agreed, companies should be careful to preserve this information. If, examples, the matter goes to litigation, companies do not want their CEO or trial lawyer forced into becoming witnesses. merely for the purpose of authenticating the screenshot or printout.
- and finally, both gentleman recommended designating someone, such as a permanent paralegal, etc., to preserve and later authenticate the document.
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(Special thanks goes to (1.) Shelly Wutke is a freelance writer based in Vancouver writing for www.reputation.com, and (2.) a summary of the ‘2012 IP and the Internet Conference’ presented by the State Bar of California written by Daniel Joshua Salinas, and (3.) California State Senator S. Joseph Simitian (11th District), the key sponsor of this legislation.)