§ 653.2 PC – Electronic Cyber Harassment Law in California

California Penal Code § 653.2 PC makes it a crime to send electronic communications (such as emails or text messages) with the intent of placing the recipient in reasonable fear for his or her safety or that of his or her immediate family. This offense is a misdemeanor punishable by up to one year in jail and fines of up to $1000.00.

The language of the code section states as follows:

653.2. (a) Every person who, with intent to place another person in reasonable fear for his or her safety, or the safety of the other person’s immediate family, by means of an electronic communication device, and without consent of the other person, and for the purpose of imminently causing that other person unwanted physical contact, injury, or harassment, by a third party, electronically distributes, publishes, e-mails, hyperlinks, or makes available for downloading, personal identifying information, including, but not limited to, a digital image of another person, or an electronic message of a harassing nature about another person, which would be likely to incite or produce that unlawful action, is guilty of a misdemeanor punishable by up to one year in a county jail, by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment.

(b) For purposes of this section, “electronic communication device” includes, but is not limited to, telephones, cell phones, computers, Internet Web pages or sites, Internet phones, hybrid cellular/Internet/wireless devices, personal digital assistants (PDAs), video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term is defined in Section 2510(12) of Title 18 of the United States Code.

(c) For purposes of this section, the following terms apply:

(1) “Harassment” means a knowing and willful course of conduct directed at a specific person that a reasonable person would consider as seriously alarming, seriously annoying, seriously tormenting, or seriously terrorizing the person and that serves no legitimate purpose.

(2) “Of a harassing nature” means of a nature that a reasonable person would consider as seriously alarming, seriously annoying, seriously tormenting, or seriously terrorizing of the person and that serves no legitimate purpose.

This section was enacted by the California Legislature in 2008 that makes it a crime to post certain types of harmful information about other people on the internet. This crime is sometimes known as “electronic harassment” or “indirect cyber-harassment.”

Indirect electronic harassment is distinct from “direct electronic harassment” or cyberstalking under Penal Code 646.9 PC. With direct electronic harassment/cyberstalking, the defendant is the one who personally harassed or stalked the victim. ^{1 2 3}

But with indirect electronic harassment under PC 653.2, the defendant only needs to post information on the internet that will encourage other people to harass or stalk the victim.

653.2 PC makes it a crime to send electronic communications (such as emails or text messages) with the intent of placing the recipient in reasonable fear for his or her safety or that of his or her immediate family.

The legal definition of indirect electronic harassment

The legal definition of posting harmful information on the internet under California Penal Code 653.2 is as follows:

1. You used an electronic communication device to electronically distribute, publish, email, hyperlink or make available for downloading personal identifying information or an electronic message of a harassing nature about another person;
2. You did so without that person’s consent;
3. You did so with the intent to place that person in reasonable fear for his/her safety or the safety of his/her immediate family;
4. You did so for the purpose of imminently causing that other person unwanted physical contact, injury or harassment; and
5. The personal identifying information or message you shared would be likely to incite or produce that unwanted physical contact, injury or harassment.⁴

For purposes of California’s indirect internet harassment law, “harassment” means a knowing and willful course of conduct directed at a specific person that a reasonable person would consider as seriously alarming, seriously annoying, seriously tormenting or seriously terrorizing that person, and that serves no legitimate purpose.⁵

Example: Aaron is a law student who regularly posts on an internet message board for law students.

After his girlfriend and fellow student Sarah breaks up with him, Aaron posts a message on that board complaining about how she has treated him.

Aaron also posts Sarah’s picture and a list of the places where she often goes to study. Finally, he writes that he hopes people who see her in public will help him “teach her a lesson.”

Aaron is guilty of posting harmful information on the internet. He used an electronic communication device to share personal information about Sarah, and he clearly intended to persuade other people to behave in a way that could seriously alarm or annoy her.

BUT

Example: Beatriz, a teenage girl, starts dating a very attractive teenage boy named Luke. Luke has a part-time job at a local fast food restaurant.

Beatriz has thousands of “friends” on Facebook. She posts pictures of Luke on her Facebook account, some of which show him in the uniform he wears to work, along with captions proclaiming how proud she is of her “hot” boyfriend.

These pictures of Luke go “viral” as Beatriz’s friends share them with other friends. Soon large numbers of girls who don’t know Luke are showing up at the restaurant where he works and trying to flirt with him. Luke’s boss is annoyed and threatens to fire him.

Beatriz posted information on the internet that led other people to annoy Luke. But she did not do so intending to place him in fear for his safety or to cause other people to annoy him. So she is probably not guilty of posting harmful information on the internet under PC 653.2

“Electronic communication devices” include all of the following:

• Telephones;
• Cell phones;
• Computers;
• Internet web pages or sites;
• Internet phones;
• Personal data assistants (PDAs);
• Video recorders; and
• Fax machines.⁶

According to Van Nuys criminal defense attorney John Murray⁷:

“It’s important to note that you can be guilty of indirect cyber-harassment even if no one ever harasses or annoys the alleged ‘victim’ of the crime. It’s not even necessary that she or he know about the potentially harmful information you may have distributed through the internet. That’s a major difference between this crime and crimes like Penal Code 422 criminal threats, where the victim needs to actually fear for his/her safety.”

Example: Frank and Laura are getting divorced. In response to Frank’s erratic behavior, Laura gets a restraining order against him.

Frank begins making false accusations against Laura on his Twitter account. He claims that she has been stalking him and making death threats against him, and that he is the one with a restraining order against her.

One night Frank sends out a “tweet” saying that he expects to be at a particular party. He asks his Twitter followers to call the police on Laura if they see her at the same party. (Laura does not end up attending the party.)

Frank is guilty of harmful internet postings even though no one actually harassed Laura due to his tweets.⁸

Penalties for posting harmful things on the internet

Indirect cyber-harassment under California Penal Code 653.2 PC is a misdemeanor in California.⁹

The penalties include:

• Misdemeanor (summary) probation;
• Up to one (1) year in county jail; and/or
• A fine of up to one thousand dollars ($1,000).¹⁰

Legal defenses

The most common legal defenses against charges of indirect electronic harassment/posting harmful information on the internet are related to the complicated intent requirements of this crime.

As we discussed above, you are only guilty of PC 653.2 if you intended both:

1. To place the alleged “victim” in reasonable fear for his/her safety or that of his/her immediate family; and
2. To cause a third party to injure, harass or make unwanted physical contact with the “victim.”¹¹

It is all too easy for a casual or humorous comment on the internet to be misunderstood. But unless you had the required criminal intent, you are not guilty of indirect internet harassment—even if something you posted or wrote led another person to harass someone else.