Online Impersonation is a Texas criminal offense that makes it illegal to pretend to be someone else online (or by text message) without that person’s permission if you mean to cause harm.

This charge is usually brought by a prosecuting attorney when a person who has had their name or persona used without their permission notifies law enforcement. If you are convicted of Online Impersonation, the maximum potential prison time varies depending on the specific allegation. The outcome of your specific case will depend heavily on the work performed by your criminal defense attorney.

Online Impersonation is classified in the Texas Penal Code under Title 7 “Offenses Against Property,” Chapter 33 “Computer Crimes.” The “Computer Crimes” in this category are not violent in nature, but instead have to do with deception, threats, or even fraud.

What is the current Texas law about Online Impersonation?

The current Texas law defines the offense of Online Impersonation in Penal Code Section §33.07 as follows:^[1]

(a) A person commits an offense if the person, without obtaining the other person’s consent and with the intent to harm, defraud, intimidate, or threaten any person, uses the name or persona of another person to:

(1) create a web page on a commercial social networking site or other Internet website; or

(2) post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.

(b) A person commits an offense if the person sends an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person:

(1) without obtaining the other person’s consent;

(2) with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and

(3) with the intent to harm or defraud any person.

The first section means that you would commit the Online Impersonation crime if you used another person’s name or images to create a website or internet profile (like Facebook, Instagram, Twitter, Tumblr or Snapchat) without their permission and meant to cause harm or problems. The “Persona” as used in the statute means an image or general identity. The harm that you intend to cause can be directed towards anyone, not just the person whose identity was used. The second section is broader, including the use of text messages and emails. This section says that you would commit the Online Impersonation offense if you were to send any kind of text, email or online message pretending to be another person and you meant to trick the recipient and cause some kind of harm to anyone.

What is the range of punishment for Online Impersonation?

If a person is convicted under section (a) of this offense, the crime is considered a Third Degree Felony. A conviction under section (b) is a Class A Misdemeanor, unless the purpose of the messages sent was to get a response from emergency personnel, in which case the punishment is elevated to a Third Degree Felony.^[2] This means that you could be charged with a third degree felony Online Impersonation offense if, for example, you sent a text message pretending to be another person threatening to commit suicide, and you meant for the police to be called. Learn more about the range of punishments for Texas crimes

I am not making a profile of an actual person, they are all fake profiles, can I still be charged with the offense?

The specific language that is used by the statute requires that a person use the name or persona of another person, so it might be a defense to say that the personas being created do not belong to any other person. However, this is a tricky defense because the “persona” could be as simple as a single photograph or name. Similarly, if you have someone’s consent to use their name or persona to make a profile or send a message, then you have not committed Online Impersonation.

I only made a profile of someone else as a joke, I didn’t intend to cause anyone any trouble. Can I still be charged with the offense?

The law in the State of Texas requires that there be an “intent” to cause harm or defraud someone (or, under subsection (a), “intimidate, or threaten any person”). This means that the state’s attorneys must prove that the posting of the profile or sending of the message wasn’t accidental or innocent.

I am an employee of the social networking company. Am I committing a crime?

The statute specifically makes an exception for employees of the following businesses:^[3]

(1) a commercial social networking site;

(2) an Internet service provider;

(3) an interactive computer service, as defined by 47 U.S.C. Section 230;

(4) a telecommunications provider, as defined by Section 51.002, Utilities Code; or

(5) a video service provider or cable service provider, as defined by Section 66.002, Utilities Code.

However, the creation of the profiles or sending of the information must be done completely within the bounds of the job. This means that even if you are an employee of a social networking site, if you created a profile of someone else and were not authorized to do so by your company, then you could still be charged with the offense.

How do I know if I have consent?

If you have someone’s consent to make a profile or send a communication using their name or persona, then you are not guilty of Online Impersonation. Consent is defined in the Texas Penal Code as “assent in fact, whether express or apparent”^[4] This means that someone can give you explicit consent (for instance, you’re verbally told by a friend that you can make a profile with their information) or implicit consent, which means that their behavior and actions would lead you to believe that they have given you consent.

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Legal References:

^1. Texas Penal Code §33.07^2. Texas Penal Code §33.07(c)^3. Texas Penal Code §33.07(e)^4. Texas Penal Code §1.07(a)(11)