A recent report in the Globe and Mail revealed that a potentially precedent-setting case of a Facebook impersonator, could lead to a slew of charges against “pranksters” on popular social-networking sites. The accused, a Manitoba high school student, was charged with the rare offence of personation after police had decided that the fake profile he allegedly created of his teacher contained “enough information to cause some disadvantage” to the complainant.
Personation is an offence under section 403 of the Canadian Criminal Code, and requires intent for either personal gain or to harm another. Despite this being the first charge of its kind in Canada, it represents but one extreme case of the growing phenomenon of cyber-impersonation and cyber-bullying. One high school student reports that they have “…seen MySpace pages made about other students. They take their picture, copy them, put them on a new MySpace and then draw over the face or write false information.”
Social-networking sites are no longer confined to aid procrastinators evade writing papers, rather they have become a preeminent means of representing oneself to the public, and inquiring about others. Employers and employees use them to develop their professional networks, and the police use them to monitor suspicious behaviour. Representations on these sites are of great consequence, and it is thus understandable that the criminal law has finally become implicated in this manner.
Cases such as this one engage IP inasmuch as they represent ideas as expressed through a digital medium, and there are both moral and economic interests in these works. So criminal circumstances aside, can such behaviour constitute fair use/fair dealing? Responding viscerally, I would respond “well if Tina Faye can impersonate Sarah Palin on SNL to entertain cable subscribers, can’t I build a satirical, yet meaningful critique of the cheerful hockey mom via Facebook?” Returning to my legal senses, however, it is clear to see that this is really a question of the current attitudes towards parody vis-à-vis fair dealing.
Parody, as it stands currently, has not been recognized in the common law to constitute a form of criticism; however, some academics believe that parody has an important niche in society, making an important contribution to social discourse. Following the guidance in the opinion of the Supreme Court in Michelin v. CAW Canada [1996] F.C.J. No. 1685, if Facebook impersonators are to come remotely near fair dealing it is clear that in the least there needs to be some form of explicit attribution to the creator of the works, and more importantly, that the use is fair.
Given the fact that these impersonations are now leading to criminal charges, it is very unlikely that any of the afore-described uses will be categorized as fair. As for my Palin page, although I trust my ability to create a fair portrayal of her whimsical public appearances from the reasonable law student’s perspective, I’d prefer to avoid engaging with the criminal justice system for the cheap laugh.