Online Impersonation

Online Impersonation is a criminal offense in Texas that involves taking or using someone’s likeness or persona on a social networking site or webpage with the intent to threaten or harm or intimidate that person or another person without that person’s consent. Texas criminalized online impersonation in 2009. Many other states have similar laws, and some categorize this offense as cyberstalking. This law usually winds up impacting former romantic partners of a relationship that do not end very well, culminating with one of the partners creating—in order to get back at that person—a fake Facebook, Twitter, or Instagram profile of the other person. The spiteful person generally ends up completely shocked that this is a thing that authorities might consider a felony in Texas.  

The Online Impersonation Law Has Been Markedly Criticized and Challenged  

Online Impersonation has sustained many legal challenges. It has been denounced and challenged as both vague and overbroad and unclear as to what exactly online impersonation means. It has also been challenged as a violation of the First Amendment right to free speech. Earlier in 2016, a District Court Judge in McLennan County (Waco) held the statute unconstitutional as both an impermissible content-based restriction on freedom of speech as well as overbroad. So, we will have to wait and see what happens to the Online Impersonation statute now on appeal. Will it be scrapped entirely, or will it be changed? Or will the Texas Court of Criminal Appeals decide to keep it intact. But, for now, online impersonation is still a serious crime in Texas. This page examines the law on online impersonation and breaks down different aspects of the criminal charge in detail.   

Is This Charge a Misdemeanor or a Felony?

Online Impersonation is a criminal allegation that can be either a misdemeanor or a felony. It is a crime that has some teeth to it. If a someone creates a social networking profile on Facebook, Twitter, Snapchat, or Instagram, using that person’s name or persona, and that person then suffers “harm” as a result, then the law calls for this to be a third degree felony. This can be severe, and many attorneys and judges have noted that “harm,” as the statute defines it, is quite unclear and ambiguous. And as noted above, the law may have to change or be scrapped altogether. Online Impersonation can also be a Class A misdemeanor. This will be the case when a person sends an email or a text message that references the phone number or other identifying information of someone else under the guise that the one texting or emailing is that person. This must be done both without that person’s consent and with intent to defraud or harm that person. Let’s examine the specific Texas Law.    

What is the Law in Texas on Online Impersonation?

Online Impersonation is located in Section 33.07 of the Texas Penal Code. Chapter 33 of the Texas Penal Code outlines and addresses different computer crimes. As noted above, it is a relatively new law. For the language from the statute, click here: Section 33.07. Online Impersonation   

How is “Harm” Defined?

The criminal penalties hinge on harm: the person who is being impersonated and whose likeness or persona is being appropriated experiencing actual harm. What harm means, as contemplated by this statute, is vague and unclear. As has been noted on this page, it has been criticized by attorneys fighting for their clients as well as by judges. Here is the definition from 33.01 of the Texas Penal Code:

Harm means damaging or changing data, interrupting service, infecting a system with a computer virus, or any other loss.      

Reading this definition, it is evident why this definition has incurred so much criticism. The phrase any other loss, disadvantage, or injury is amazingly broad. Reading this, what exactly this phrase means cannot be ascertained with any confidence. Harm could therefore be anything. Time will tell if the Texas Court of Criminal Appeals strikes down this definition, and the Texas Legislature tightens it to better construe its meaning.

 

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