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Jun 3, 2010

Prosecutors Get Creative Online

The Internet Cases blog reports on a California appeals court decision allowing prosecution under the state's "false personation" statute (Cal. Penal Code section 529) of a man who created a fake MySpace profile of a church pastor, including statements that the pastor has engaged in homosexual activity and drug use. 

The statute seems designed to prevent impersonation that places the individual impersonated in legal jeopardy.  In its decision, the court held that the false statements made in the name of the pastor "arguably could have subjected the pastor to defamation actions or to be terminated from his position in the church."

At the same time, the court rejected application of California's criminal identity theft statute (Cal. Penal Code section 530.5), since that statute requires that the defendant's use of willfully obtained personal identifying information be "for an unlawful purpose" (quoting People v. Tillotson, 157 Cal.App.4th 517, 533 (2007)).

As with the application of criminal defamation and computer fraud statutes to similar cases, prosecutors are being creative in attempting to apply statutes created for a different era into an Internet context.  Until the laws are updated, this prosecutor creativity is likely to continue.

The decision, which is unpublished, is Clear v. Superior Court, No. E050414, 2010 WL 2029016 (Cal.App,. 4th Dist. May 24, 2010). 

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