Misused false identities and marital status. The crime of Penal Code 401

A few days ago Agencia EFE asked me a series of questions about the legal side affects phishing social networks and blogs for the preparation of an article on false identities: "Teasing and revenge love running on the network behind identities false "

The article has been published so far in some media: ADN.es, Informative Telecinco, Public, Technology Today, La Opinion Coruna, Levante EMV, Faro de Vigo, Straits Times, Digital Journalist, La Opinion de Málaga, La Opinión de Granada, Yahoo News, News Terra, The Information.

Understandably, and as often happens in such cases, "the lawyer in New Technologies Paul F. EFE Burgueño explains "is not" exactly "what has been published EFE. The news agency has selected what he considered most appropriate for the public to whom the article, but on this blog think it is appropriate that we pause a second to explain in a more clear and precise legal concepts treated so it is best to leave here the questions asked and my answers:

- Is the impersonation offense?

The impersonation is a crime only if the conduct fits perfectly into the offense of section 401, that is, if what we are usurping the civil status of another. In this case, the conduct may be punished with imprisonment from six months to three years.

If what is done is simply to create a profile or fabricated false information, the conduct does not fit into the offense and could not be considered a crime, so the fact invent false information to participate in a social network is not constitutive of crime of usurpation of civil status.

- If there is crime, what are the consequences of entering a foreign account of a social network and pose as the owner, or create a new account using the name of another person, if only for a joke? How can they defend the citizens of these practices?

Enter the account or profile of another person is a behavior that in itself may result in severe legal consequences. By accessing an employed person may be committing a crime of injury considered by privacy legislation as a means of discovery and revelation of secrets, this crime, commonly known as "hackering" referred to in Articles 197 et seq. the Criminal Code. To access your account or profile of the other is likely to have had to cause damage to computer systems to bypass or get the keys and passwords, in which case, we would be a crime to harm a "networking, media or computer systems" set out in paragraph 2 of Article 264 of the Penal Code, a crime commonly known as "crackering. An example given in the two cases happened a few months ago in a case where a woman imposed 5 years in prison for committing a virtual murder. Once an individual has accessed the profile or the account of another if it is passed by the true owner of it is a crime of usurpation of civil status (401 of the Penal Code), unless it is given the strange case of that the profile that has agreed in turn was false or invented, in which case this would not apply nor the hackering crime but that of crackering, if applicable. The combination of crime varies by type of access, the data that is accessed and the use made of them.

The fact that identity theft has been or is not a joke does not exempt from criminal responsibility of the author, as required by Article 20 of the Criminal Code. But it could become regarded as a mitigating circumstance under paragraph 6 of Article 21.

The best way to defend against such practices is to conduct a proper preventive work both with respect to systems such as attitude. The three basic recommendations are:

• Use strong passwords: at least 8 alphanumeric digits and contain uppercase and lowercase letters.
• Keep your operating system updated to prevent vulnerabilities and security holes.
• Have active and updated antivirus solutions to prevent the installation or execution of Trojan horses or other malicious programs that monitor the user and subtract your data and passwords.

Also, the National Advisory Council on Cyber-Security is trying to drive the adoption of concrete measures on prevention on this level.

With the adoption of preventive measures minimizing the risk. However, if the user has suffered a usurpation of civil status, it is proper to put the case in the hands of professionals. Each case is different, but generally these would be the main recommendations:

• It is possible that the offender may have acted or fraudulently used the name and address of the person involved in making it very dangerous legal situations and in these cases is a priority to report the facts to the Security Forces of the State in order to make it evidence that the identity has been superseded and can not attribute to him the acts committed by the offender.
• To avoid litigation, you should contact the administrator of the website or social network to immediately remove the offending profile or return control to the true owner. In some cases, contact with the impostor to complete the impersonation of a less aggressive form can also speed up the process.
• Should the courts is necessary or appropriate, you should prepare the minutes of notarial presence of infringing content before requesting their removal

- Is there a loophole?

In Spain there is no legal vacuum in this respect. The law can be improved, but now contains the substance for such crimes can be prosecuted and punished in the country. However, the prosecution of these crimes at the international level is technically and practically very complex. In most cases international criminals go free because of the difficulty of applying primarily national systems (designed for a world off line and short distances) to the Internet and rarely end up running the sentences on time.

- What assumptions might apply the crime of usurpation of civil status which includes 401 of the Criminal Code?

Since 1995 the public use of an assumed name or profile not being pursued invented so that it could only apply the 401 of the Penal Code in cases of civil identity theft, ie when a person poses as another. For that behavior fits the offense, the courts are demanding that this usurpation is complete or almost complete, was not sufficient to take only age, marital status or name.

- What's in the usurpation of civil status? What is the complete usurpation?

Usurp the status is to impersonate another. del estado civil si no induce a error a terceros. That the encroachment is complete or not is a more practical than theoretical: for example, using nick or nickname of another person may be considered a usurpation of civil status if not mislead others. In contrast, usurp the nick and act as that person, contacting friends and making use of other personal characteristics affected it would be a complete usurpation.

In summary, one could say that complete usurpation is suitable for generating this error in third, making them think that the usurper is actually affected. And partial infringement is one which by itself is not suitable for generating error.

The Criminal Code does not make this differentiation. The distinction between full and partial encroachment stems from the doctrine and jurisprudence. And besides, is quite controversial and there is no unanimous position in this regard.

- Is this a regular consultation on law firms?

Although the behavior is very common on the Internet, the cases are not severe and colicky with a simple statement to the administrator of the website or social network. The cases that come before the law firms are few and extremely serious as the theft is usually accompanied by the commission of crimes or offenses in which the offender has used the name and address of the person concerned to carry them out.

· Article available online: "Teasing and revenge love running on the network behind false identities"

· Law Firm specializes in resolving cases of identity theft: Abanlex Lawyers