Without My Consent

a. Introduction

 

Cal. Penal Code § 528.5 allows the victim of electronic impersonation to bring a civil action against the perpetrator. A victim may bring a civil claim for electronic impersonation in cases where the victim’s private images were disseminated using the internet by someone impersonating the victim. Examples of situations where a claim based on this statute would be appropriate include when the harasser opened an email account, set up a profile on a social network website (i.e. Facebook or MySpace), published a blog, or posted an online advertisement (such as on Craigslist) in the victim’s name pretending to be the victim, and included the victim’s intimate images without the consent of the victim. This type of situation may also lead to criminal charges.   

 

b. Text of the Statute

 

“(a) Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d).

   

(b) For purposes of this section, an impersonation is credible if another person would reasonably believe, or did reasonably believe, that the defendant was or is the person who was impersonated. 

   

(c) For purposes of this section, "electronic means" shall include opening an e-mail account or an account or profile on a social networking Internet Web site in another person's name. 

   

[…]

   

(e) In addition to any other civil remedy available, a person who suffers damage or loss by reason of a violation of subdivision (a) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief pursuant to paragraphs (1), (2), (4), and (5) of subdivision (e) and subdivision (g) of Section 502.

 

(f) This section shall not preclude prosecution under any other law.”1 

 

c. Cases

Procedural Posture: Complaint filed in Los Angeles Superior Court on April 26, 2011. On September 9, 2011, defendants’ motion to compel arbitration and stay proceedings was granted. The granting of defendants’ Petition to Compel Arbitration and Stay Proceedings in Lo, et al v. American Apparel, et al, on July 29, 2011 had collateral estoppel effect on Plaintiff Ferguson and Lubans-Dehaven’s claims as they are parties in the Lo lawsuit. The court severed the confidentiality provision in Plaintiff Morales’s Arbitration Agreement and enforced the remainder of the agreements. 

 

Law: Cal. Penal Code § 528.5 (one of five claims)

 

Facts: Shortly after Plaintiffs Ferguson, Lubans-Dehaven and Morales filed separate lawsuits against defendants, blogs purportedly published by the plaintiffs appeared on the internet containing plaintiffs’ nude photos and stating that their lawsuits against defendants were frivolous and part of an extortion scheme.2 Plaintiffs Ferguson and Lubans-Dehaven’s photos were taken during photo shoots conducted for defendant American Apparel, but fell outside the authorized scope of the shoots and were not intended for release to the public.3 Plaintiff Morales’s photos on the other hand were provided to defendants by the plaintiff herself for fear that her employment would be terminated or she would be subject to disciplinary action if she did not comply with their demands.4 Plaintiffs deny having published the blogs and allege that at the time they were published, the photographs in question were in the exclusive control of defendants.5 At no time did plaintiffs authorize either the publication of the blogs or the public dissemination of the photographs.6  

 

Outcome: Pending.7 

 

d. Practice Pointers

 

Violation of Cal. Penal Code § 528.5 may subject the defendant to paying attorney’s fees and to criminal liability.