Have you ever found yourself in a situation where someone is using your photographs published on your social media to impersonate you on other social profiles?
We tell you what you should do in these cases:
The first question that may arise is… Can we report identity impersonation?
Yes, but with caveats. Although the criminal offense (covered in Article 401 of the Penal Code, “Crime of Usurpation of Civil Status”) does not require the impersonation to be carried out to the detriment of the impersonated party, the majority of jurisprudence understands that, for this conduct to constitute a criminal offense, it is required that actual harm has been caused to the affected party, as well as that the act is carried out with criminal intent and direct malice. (Among others, STS 1045/2011 of October 14. Reporting Judge: Juan Ramon Berdugo Gómez de la Torre)
Likewise, our courts have established that for the crime of usurpation of civil status to occur, it is necessary for the conduct to be carried out continuously over time, and for the usurpation to encompass all facets that make up human identity, so that the impersonator passes themselves off as the impersonated party for all purposes, as if they were that person (STS 602/2021 of July 7. Presiding Judge: Miguel Colmenero Menéndez de Luarca).
Therefore, identity impersonation cannot be reported – as it will not be considered a criminal act – when the impersonation has been committed by a family member or acquaintance with whom there is trust and knowledge of the act, as well as when the impersonation occurs punctually and in isolation and without the impersonator encompassing all facets of the impersonated party.
Where is this offense contemplated?
In the drafting of Organic Law 1/2015, of March 30, which modifies Organic Law 10/1995, of November 23, of the Penal Code, technological crimes or those linked to the use of the Internet gain special importance. Thus, the dissemination of intimate images or videos without authorization, acts of piracy, pedophilia, web attacks, etc., are punished. However, in relation to identity usurpation on social media, Article 401 of the 1995 Penal Code is maintained: “Whoever usurps the civil status of another shall be punished with a prison sentence of six months to three years.”
How should I file a complaint?
To file a complaint for identity impersonation, you must go to the Mossos d’Esquadra, National Police, or Civil Guard, especially to prevent acts you did not commit from being attributed to you.
It is necessary to provide evidence of the crime such as screenshots, images, or conversations that confirm it.
Another possibility is to go to the Consumer authorities or the Spanish Data Protection Agency, also with the necessary evidence.
It is equally important to seek advice from professionals, as the facts may not constitute an offense of usurpation of civil status under Article 401 of the Penal Code, but rather a crime of falsification of a commercial document under Article 392 of the Penal Code, as well as a crime against privacy and one’s own image. (As occurs in the aforementioned STS 602/2021 of July 7)
What are the main consequences for the impersonator?
Given that the procedure for cybercrimes is new for police forces, not all of them take charge of collecting a complaint, which they should. Therefore, we recommend going to a police station in a large city and providing all necessary evidence.
Once the procedure has begun, and all the requirements contained in the type and established by jurisprudence (to which we have referred throughout this article) are met, the impersonator faces prison sentences ranging from 6 months to 3 years of deprivation of liberty.
Conclusion:
Technological advancements, as well as the implementation of social media in our lives, have brought countless conveniences and guarantees in some aspects and, unfortunately, are also becoming a means for the commission of certain criminal acts, such as identity impersonation on pages, forums, social networks, and a long etcetera.
New technologies advance much faster than our legislator, which means that some illicit acts and situations still lack protection. This is why it is important to be cautious when providing our data or storing our images on certain internet sites.
It is equally fundamental, once we have detected that our identity has been impersonated, to have good professionals who can advise and guide us on the best strategy for initiating criminal proceedings, as well as to meticulously analyze the matter and assess whether we are truly facing an offense foreseen and punished under Article 401 of the Penal Code, or if, on the contrary, we are dealing with another type of offense against privacy or one’s own image, or even a crime of falsification of a commercial document.
An article written in collaboration with Averum Abogados
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