French MEPs voted for Bill Lopssi 2, which includes criminalizing identity theft on an electronic communications networks like Internet.
False profiles abound on social networks, starting with Nicolas Sarkozy's profile. Dressing someone else's digital wardrobe is child's play. You only need to know a person's email identifiers to send e-mails for them. 210,000 cases of identity theft are recorded every year in France, and nearly one in two victims are unaware of how the fraudster obtained their personal data. What can we do about this little game that can turn into a drama?
For the moment, simply using a fake person's mailbox is not punishable. The fine penalty of 75,000 euros for "identity theft" only sanctions two cases: the use of a false identity as an authentic instrument or an administrative document intended for the public authority (authentic deeds drawn up by notaries), and the fact of presenting oneself under a false name to obtain an extract of criminal record.
In all other cases, identity theft is punishable only when the victim of the impersonator is liable to a criminal conviction. For example: someone impersonating a victim is using defamatory tactics or commits a traffic accident. In other words, a "primary" offense is required for identity theft ("related"offense) to be criminally recognized.
Another example is that the creation of an e-mail address under the identity of a politician can only be punished if the perpetrator uses it for insulting or defamation (article 434-23 of the Criminal Code). The same applies if a person uses someone's identity to rent a car without returning it at the end of the rental period or falsifies a person's checkbook to pay for purchases. Here, the victim may face a conviction for theft or fraud.
Infringement image rights, which can also be used as a basis for legal action following the publication of photos of the victim on the Internet. At the end of November 2010, comedian Omar Sy, a member of the duo Omar and Fred, sued the impersonator who had created a fake profile in his name for 4,000 euros, including 2,500 euros in compensation. Accessible to all Facebook members, this profile displayed photos representing himself alone or with his stage partner. It also contained comments that the artist was supposed to have written, as well as the answers of his "friends" who thought they were talking to him.
Justice allowed Omar Sy to ask Facebook for the impersonator’s IP address and e-mail address. The ISP to which the IP address corresponded then disclosed the real identity of it’s customer. The latter was sued for infringement of the artist's privacy and image rights. In the court's view, any person of any notoriety has the right to expect respect for his or her private life and "no reason can justify the leak of information about his or her tastes and the names of some of his or her friends to the general public without their explicit consent".
The Loppsi bill provides the legal basis for the termination of the repeated use of a third party's identity or personal data on the Internet when such action is "disturbing the tranquility of that person or others" or is "violating their honor or consideration". This offense should be punishable by one year's imprisonment and a fine of 15,000 euros.
Some experts believe that this new criminalization leaves many situations unpunished. For Christophe Naudin, a criminological researcher in the research department on contemporary criminal threats at the University of Paris II, it is not enough to confine himself to identity theft cases in the strict sense, but also to take into account the numerous cases of identity substitution and fictitious identities. It would also be necessary for the law to penalize all cases of identity theft in the same way, including the theft of identifications documents with the purpose to get loans or mortgages. In the case of personal injury, the perpetrators should even be tried in court, especially since the trauma associated with this type of offense can be enormous.