In a recent survey, 28% of Americans admitted they had directed malicious online activity at someone they didn't know. In many cases, such activity is protected by the First Amendment. But in other cases, such activity can subject you to a lawsuit or a criminal prosecution.
Malicious online activity takes various forms in California, including:
- Cyber harassment,
- Cyberstalking, or
- Making criminal threats.
The good news is that before you can be subjected to criminal penalties for electronic communications or internet comments, there must be evidence that you intended to cause harm to your alleged victim.
Internet “trolling” in California
"Trolling" refers to the practice of posting inflammatory or inappropriate messages or comments online for the purpose of upsetting other users and provoking a response.
Trolling is not, in and of itself, against the law. However, if the information you post is false or private, the person you post about might be able to sue you for a violation of California's defamation laws or California's civil invasion of privacy laws.
And when trolling crosses the line into cyber harassment, bullying, or stalking – that is, when the comments or communications contain personal information or threats, or are obscene or harassing -- there are several California criminal laws they might violate.
California law also protects students from harassment and cyberbullying at California public schools, universities and colleges. In addition to any applicable civil or criminal consequences, students who engage in cyberbullying can be suspended or expelled.
Posting harmful material on the internet – CA Penal Code 653.2
Penal Code 653.2 PC is California's law against posting harmful material on the internet. It is sometimes referred to as “indirect electronic harassment” or “indirect cyber-harassment.” This is because the comments invite or encourage someone other than the person making them to harass or threaten the subject.
Under PC 653.2, “harassment” consists of knowing and willful conduct that:
- Is directed at a specific person,
- Serves no legitimate purpose, and
- Would be alarming, annoying, tormenting, or terrorizing to a reasonable person.
California Penal Code 653.2 is also violated when you use an electronic device (such as a computer or a cell phone) to send, publish or make available personal identifying information or photos (sometimes called "doxing"), or post or send a harassing message about, another person if:
- It is done without that person's consent; and
- Such personal information, image or message is likely to incite or produce unwanted physical contact, injury or harassment of that person; and
- Your intent is to place that person in reasonable fear for his or her safety or the safety of his or her immediate family.
Posting harmful personal information on the internet in violation of California 653.2 PC is a misdemeanor. Penalties can include up to one year in county jail and/or a fine of up to $1,000.
Annoying Phone Calls, Texts or Emails – Penal Code 653m
Penal Code 653m is California's law against annoying phone calls, texts and emails. You violate 653m PC when you:
- Make a telephone call or send a text message or email that is obscene or threatening, or
- Make a series of repeated communications of any nature with the intent to harass or annoy the person to whom they are directed.
Consequences of violating California Penal Code 653m can include up to 6 months in county jail and/or a fine of up to $1,000. Alternatively, a judge might grant probation with the requirement that the defendant participates in counseling.
California's Cyber Stalking Law – Penal Code 646.9
Although we often think of stalking as following another person around, California's anti-stalking law applies equally to threatening behavior on electronic devices such as cellphones and computers. California's law on stalking is set forth in Penal Code Section 646.9, which makes it a crime to willfully and maliciously harass another person with a credible threat intended to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family.
Violation of Penal Code 646.9 is usually a misdemeanor. However, it can be charged as a felony if the stalking is in violation of a court-issued protective order or the defendant has a prior conviction for stalking.
As a misdemeanor, California cyberstalking can be punished by up to one year in county jail and/or a fine of up to $1,000 fine. Felony penalties for a California stalking conviction can include up to 5 years in state prison.
Making Criminal Threats -- California Penal Code 422
Penal Code 422 PC, California's "criminal threats" law, makes it a crime to use electronic means to put someone in fear by threatening to kill or physically harm them or a member of their family.
In order to count as a criminal threat, the threat must:
- Place the other person in a state of reasonably sustained fear for their or their immediate family's safety,
- Be specific and unequivocal and
- Be made verbally or in writing, including via an electronic device.
You can be charged with the California crime of making a criminal threat regardless of whether you have the ability to carry out the threat or whether you actually intend to do it.
Making a criminal threat is a “wobbler” crime under California PC 422. This means that prosecutor has the discretion to charge it as either a misdemeanor or a felony, depending on the circumstances and your criminal history (if any).
As a misdemeanor, criminal threats can be punished by up to one year in county jail and/or a fine of up to $1,000. If convicted of criminal threats as a felony, you face potential penalties of up to 3 years in California state prison and/or as much as a $10,000 fine for each threat and each victim.
Cyber Bullying at California Schools
Education Code 234 is California's “Safe Place to Learn Act.” EC 234 requires schools in California to adopt policies and procedures to prevent harassment, intimidation, or bullying of students, including bullying based on “actual or perceived characteristics” such as disability, gender, gender identity or expression, nationality, race or ethnicity, religion, sexual orientation, or association with any person or group.
California's Safe Place to Learn Act defines “bullying” as any severe conduct directed toward another student that can be reasonably predicted to:
- Place a reasonable student in fear of harm to person or property;
- Cause a reasonable student to experience a substantially detrimental effect on his or her physical or mental health;
- Interfere with a reasonable student's academic performance or
- Interfere with a reasonable student's participation in or benefit from school services, activities, or privileges.
Under the Safe Place to Learn Act, California schools must develop policies for reporting and investigating alleged bullying and intimidation, intervention by school employees, and "whistleblower” protections for those who report such incidents.
A similar law – California Education Code 66302 – requires state universities and community colleges to adopt policies to prevent students from harassing, intimidating and bullying each other.
As of January 1, 2017, the Safe Place to Learn Act will expressly cover "cyber sexual bullying.” Cybersexual bullying includes sending any photograph or other visual recording showing an identifiable minor in a nude, semi-nude, or sexually explicit manner.
Students found guilty of any form of bullying – including cyber bullying or cyber sexual bullying -- may be suspended or recommended for expulsion.
What About My Constitutional Right of Free Speech?
The First Amendment to the U.S. Constitution protects your right to freedom of speech. But this right is not absolute.
The Supreme Court of the United States has carved out exceptions based on false statements, obscenity, child pornography and incitements to violence. Prohibitions on cyberbullying are seen by proponents as an extension of these rights. Opponents see them as an unreasonable prohibition of protected speech.
It can be a challenge for legislatures and courts has been to balance the desire to protect victims of cyberbullying with legitimate free speech concerns. It is particularly difficult since courts are not always in agreement about what is constitutionally permitted. Laws similar to Nevada's cyberbullying laws have been struck down as overly broad and constitutionally vague in New York and North Carolina.
The United States Court has not yet weighed in on the issue, though it certainly seems possible in the future. In the meantime, if you or someone you know has been charged with a criminal violation of Nevada's cyber harassment, bullying or stalking laws, we welcome the opportunity to help. To schedule a free consultation with one of our caring California criminal defense lawyers, simply contact us via the form on this page. Or call us at 855-396-0370 to speak to an attorney at your nearest office.