Catfishing in Germany

What exactly is catfishing, and to what extent is this behaviour punishable in Germany? Catfishing is also called “realfake” in Germany. 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. Family members and friends are often invented, and corresponding profiles are created to make the false identity look as authentic as possible.

In social networks, the catfish contacts another person via the created profile and tries to establish a relationship of some kind. The motives can be of various sorts. Often, the catfish intends to establish a romantic relationship via the internet and gain their counterpart’s trust. This action is to uncover intimate information or data or receive money. In addition, false profiles are used to coerce others or to gain confidence or sympathy.

Catfishing can be challenging to detect, as a special effort is often behind it. 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.

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.

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

According to Section 263 (1) 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 therefore causes damage to another person, this constitutes fraud.

However, since even the attempt at fraud is punishable under Section 263 (2) StGB, the victim does not need to actually respond to the request for money for the offence to be punishable. Fraud is punishable by a sentence of up to five years or a fine.

Another possible motivation for catfishing is extortion (Section 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. Coercion (Section 240 StGB) can also be realised concerning catfishing.

Under certain circumstances, catfishing can result in stalking under Section 238 StGB. Stalking is punishable by a prison sentence of up to three years or a fine. It 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 also occur explicitly through the use 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.

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

According to Section 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. Defamation does not apply if this fact is demonstrably true. Defamation (Section 187 StGB) is linked to Section 186 StGB and requires that the allegation in question is demonstrably untrue and that the offender must have been aware of it.

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

Using someone else’s name can violate the right to one’s own name (Section 12 German Civil Code—BGB) because it often creates confusion about attribution. People who see the profile assume that the person behind it is actually the person named. If there is an infringement, the person concerned can assert a claim for removal and/or injunctive relief via Section 12 BGB. In addition, a catfish regularly violates the right to one’s own image according to Section 22 German Art Copyright Act (KUG) if it uses another person’s photo for the profile without having that person’s consent. In such cases, the person concerned may be entitled to a claim for removal under Section 1004 (1) sentence 1 BGB, i.e. a claim for deletion of the profile. In addition, it may be helpful to persuade the offender to make a cease-and-desist declaration with a penalty clause under Section 1004, para. 1, sentence 2 BGB. In this way, the danger of repetition can be contained. In addition, claims for damages can be asserted if necessary.