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Catfishing in Germany- Advice from German Criminal Lawyers

Catfishing in Germany (and elsewhere) is becoming more common. Many users of social networks, online forums and especially dating platforms have become victims of catfishing. This can have profound consequences, both financially and psychologically. This is because a relationship of trust is created online with the help of a false profile, which is then shamelessly exploited.

What exactly is catfishing and to what extent is this behaviour punishable in Germany? Is catfishing a crime or does it have links to criminal behaviour? We would like to give you an overview of these big questions in this article. If you have any legal questions in connection with catfishing, our lawyers at Schlun & Elseven Rechtsanwälte PartG mbB will be happy to help you.

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What is Catfishing?

Catfishing in Germany is also referred to as “Realfake”. A catfish is a person who pretends to be another person online. The catfish either copies the identity of a real person or creates a freely invented identity. The false profile is provided with photos and information about the pretended person. Often, family members and friends are also invented and corresponding profiles are created to make the false identity look as real as possible.

In social networks, the catfish contacts another person via the created profile and tries to establish a relationship of some kind. There are many reasons and motivations for the catfish. Often, the catfish intends to establish a romantic relationship via the internet and to gain the trust of the other person. This is to find out intimate information or data or to receive money. In addition, false profiles are used to mob others or simply to gain confirmation or sympathy.

Catfishing in Germany can be difficult to detect, as the catfish has often put a lot of effort into their activity. Experienced catfish can hide their motivations very well. However, a warning sign is if the person does not want to have any contact in real life and wants to have a purely online relationship. Video chats are also often rejected under a pretext. If you are unsure about the person for these reasons, it is advisable to approach the situation cautiously and avoid providing personal information and data.

Is Catfishing a Criminal Offence in Germany?

Catfishing in Germany is not a criminal offence in itself. Anyone who pretends to be someone else on the internet with the help of a false profile is generally not liable to prosecution. Creating a profile with false information may only violate the terms of use of the respective social network.

However, catfishing can lead to criminal liability if the use of the false profile is accompanied by actions relevant under criminal law. The circumstances of the specific case are therefore decisive.

Fraud, Extortion, Coercion & Catfishing in Germany

Frequently, fraud is committed or at least attempted through catfishing. As a rule, the catfish first establishes a familiar relationship with their victim, primarily by paying attention to them and showing them understanding. The catfish then pretends to need money and seeks it from their victim. The trust previously established is supposed to induce the victim to transfer the urgently needed money.

According to § 263, para. 1 German Criminal Code (StGB), fraud is committed, among other things, when someone, to obtain an unlawful pecuniary advantage for himself or a third party, damages the assets of another by creating a misapprehension through false pretences. Thus, if the catfish deceives another person through the false profile, obtains an unlawful pecuniary advantage through this deception and thus causes damage to another person, this constitutes fraud. However, since even the attempt at fraud is punishable under § 263 (2) German Criminal Code, it is not necessary for the victim to actually respond to the request for money for the offence to be punishable.

Fraud is punishable by a prison sentence of up to five years or a fine.

Another possible motivation for catfishing is extortion (§ 253 StGB). In this case, the catfish wants their counterpart to send them a nude photo, for example, or to disclose sensitive information or data. In connection with catfishing, coercion (§ 240 StGB) can also be realised.

Stalking, § 238 StGB

Under certain circumstances, catfishing can result in stalking under § 238 StGB. Stalking is punishable by a prison sentence of up to three years or a fine. This is understood to mean actions “which are aimed at interfering with the victim’s personal sphere of life through direct or indirect approaches to the victim and thereby impairing their freedom of action and decision” (BT-Drucksache 16/575, p. 7).

Stalking can explicitly also occur through the use of means of communication on platforms such as social networks or online forums. In this case, the perpetrator must persistently attempt to make contact. A repeated commission is required. This must express that the perpetrator acts out of disregard for the opposing will of the victim or out of indifference to their wishes so that future harassment can also be assumed.

Furthermore, it is a prerequisite that the stalking is likely to affect the victim’s way of life seriously.

Offences of Defamation, §§ 185 ff. BGB

Criminal liability may also be considered for the offences of defamation in Germany, which are standardised in § 185 StGB. Insult is generally punishable by imprisonment of up to one year or a fine (§ 185 StGB). In principle, it is only prosecuted based on a criminal complaint by the offended person (§ 194 (1) StGB). The term insult generally refers to the expression of contempt, disregard or disrespect. The statement must be defamatory.

According to § 186 StGB, defamation occurs when a fact is alleged or disseminated about another person, which is suitable to make that person contemptible or to disparage that person in public opinion. This does not apply if this fact is demonstrably true. Defamation (§ 187 StGB) is linked to § 186 StGB and requires that the allegation in question is demonstrably untrue. The offender must have been aware of it.

Civil Law Consequences of Catfishing in Germany

Catfishing in Germany can also have consequences under civil law. If the identity of an actually existing person, i.e. name, personal details, photos, is used for the false profile, this is usually a violation of personal rights.

The use of someone else’s name can be a violation of the right to one’s own name (§ 12 German Civil Code – BGB), because this often creates confusion about attribution. People who see the profile assume that the person behind the profile is actually the person named. If there is an infringement, the person concerned can assert a claim for removal and/or injunctive relief via § 12 BGB. In addition, a catfish regularly violates the right to one’s own image according to § 22 German Art Copyright Act (KUG) if it uses the photo of another person for the profile without having that person’s consent.

In such cases, the person concerned may be entitled to a claim for removal pursuant to § 1004 (1) sentence 1 BGB, i.e. a claim for deletion of the profile. In addition, it may be useful to persuade the offender to make a cease-and-desist declaration with a penalty clause pursuant to § 1004, para. 1, sentence 2 BGB. In this way, the danger of a repetition can be contained. In addition, claims for damages can be asserted if necessary.

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Practice Group: German Criminal Law

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German Criminal Law

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