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Net Law Roundup #40

by Jeremy Malcolm, Internet lawyer

Previous articles in this series have touched on the topic of identity theft. You may recall from these articles that the most common methods of online identity theft involve your computer being infected by a virus, installing spyware in the belief that it is legitimate software, or being tricked by the perpetrator of a phishing scam into entering your personal details on a fraudulent Web site.

What we haven't yet looked at in detail is the legal consequences of your identity being misappropriated by someone who has taken and misused your personal details.

If a crime is committed by somebody else using your identity, it should be straightforward for you to escape conviction or to have any existing conviction in your name quashed. This is because your identity as the culprit has to be shown beyond reasonable doubt. Naturally, this doesn't lessen the embarrassment and inconvenience of being investigated or charged with a crime, and it may take some time to clear your name.

It can be slightly harder to escape liability in non-criminal cases, such as where a person enters into a credit or other contract in your name. This is because, although a contract cannot be formed without both parties actually agreeing to it, it does not need to be proven beyond reasonable doubt that you are the person who agreed to it, but only that it is "more likely than not" that you were.

However, most large companies with whom your stolen identity might be used are familiar with the problem of identity theft and will listen reasonably if you claim to be a victim. Credit card companies in particular will limit your liability, usually to $50 depending on the bank, or zero if you report the theft of your credit card details before they are used.

If you are suspicious, obtaining a copy of your credit record from the credit reporting agencies can help you to catch the misuse of your identity early. As soon as you find that your identity has been misused, you should also contact the police. Further tips are available in a Government-produced kit that you can download from http://www.ag.gov.au (search for "ID theft" on that site).

Please Note: The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of iLaw’s legal practitioners who will consider their particular circumstances