Posting Harmful Information on the Internet

The ushering in of the digital era has, sadly, been accompanied by new methods to harass, threaten, and bully other people. Consequently, California lawmakers have implemented new legislation to tackle these problems. One of these statutes is Penal Code Section 653.2. This section criminalizes cyberbullying, also called electronic cyber-harassment, or posting harmful information on the internet.

California punishes this crime harshly, given that people's reputations are on the line. At the same time, cases of mistaken identity are common, so it is not unusual for a person to be accused due to misidentification. That said, you want to consult an experienced attorney if charged. You could only have been accused falsely or out of misidentification.

At California Criminal Lawyer Group, we have fought against cyberbullying cases and won. In more complicated cases, we have managed to negotiate a lenient sentence. Call us if you have been charged in Fresno, and we will assist you.

Defining The Crime of Posting Harmful Information on the Internet

In 2008, California lawmakers enacted PC Section 653.2, which outlines how the state describes harassment and cyberbullying. According to this statute, it is against the law to utilize an electronic communication device to publish, distribute, hyperlink, email, or otherwise make available a harassing message or personally identifiable information about someone else without their permission, intending to make that individual reasonably fear for their safety or the safety of their immediate family. You may be subject to a maximum jail sentence of 12 months if found criminally liable for this offense.

Simply put, this law criminalizes posting or publishing harmful content about another individual online. Electronic cyber-harassment is not similar to cyberstalking under PC Section 646.9. To be prosecuted under PC Section 653.2, you only need to post information that would encourage other individuals to stalk or harass the victim. This offense is sometimes called indirect cyber-harassment or indirect electronic harassment.

Factors the District Attorney Must Prove

For the judge to find you guilty under 653.2 PC, the district attorney must demonstrate the following factors, also called the elements of the crime.

• You willingly and knowingly delivered, distributed, published, emailed, hyperlinked, sent, or availed for downloading harmful information regarding the victim, including their personal identifying information and messages of a harassing nature.
• Utilizing an electronic communication device.
• Without consent from the victim.
• Intending to imminently provoke or incite unwanted physical injury, harassment, or contact with the victim.
• The personal information you gave was reasonably likely to cause this effect.
• You did this so the involved victim could feel reasonably threatened, harassed, or fear for their safety or the safety of their immediate family.

Definition of Key Terms Making Up the Elements of the Crime

Understanding the following key terms that make up the elements of the crime will help you better understand the legal definition of cyber-harassment.

Electronic Communication Device

According to this section, the word “electronic communication device’ incorporates a wide array of devices, including, without limitation, cell phones, telephones, internet websites or web pages, computers, VOIP (internet phones), hybrid wireless/internet/cellular devices (for example, smartphones), PDAs (personal digital assistants), pagers, fax machines, or video recorders. Electronic communication has a similar meaning to the term described under Sec. 2510(122) of Title 18 of the U.S. Code.

Harassment

Harassment, under this law, means a willful and knowing course of action or message directed at a specific individual that any reasonable party would deem seriously annoying, alarming, tormenting, or terrorizing the individual and which serves no valid purpose. Harassing someone with electronic communication has specific elements, including:

• Distribution or sending—disclosing or posting another party's information without seeking their authorization is one of the instances of harassment considered unlawful under the law.
• The distributor's effect—the prosecuting attorney must prove beyond doubt that you meant to inflict fear or cause the other party to be afraid for their safety or the safety of their family.
• Likely effect or outcome—this applies when posting harmful content on the internet would result in harassment of someone else.

Of a Harassing Nature

Something of a harassing nature means something of the character that any reasonable party would deem seriously annoying, alarming, terrorizing, or tormenting to an individual and which does not serve a legitimate purpose.

Without Consent

When you have consent from someone, they have permitted or authorized you to act in a certain way. Under PC 653.2, the D.A. must demonstrate that you shared or posted the information without the victim's authorization; you and the victim involved did not agree concerning posting the victim's information. Therefore, the prosecutor will consider you to have violated the victim's rights.

Specific Intent

The prosecuting attorney must establish that you aimed to inflict fear, unwanted physical harassment, injury, or contact by a third party upon the victim by distributing or sending the content. If your content did not inflict harm or fear upon the victim, the judge cannot convict you under 653.2 PC since they would not consider your actions harmful.

The Victim Acknowledged That You Intended to Inflict Fear.

To be found criminally liable under this law, the victim must acknowledge your aim to cause harm to or instill fear in them by the content you sent or distributed. This could be proven if the victim reported the content.

Examples of instances that constitute publishing harmful information on the internet include:

• Tim has a feud with Mark, his classmate. So, he sends their mutual friends lewd photos that have Mark's head photoshopped onto a naked body. In this instance, Tim may be accused of cyberbullying.
• Stephanie posts malicious content about Alex on a famous social media site. This content contains false allegations regarding Alex’s professional and personal life, ruining her reputation and making her fear for her safety. Stephanie can be accused of cyberbullying in this case.

The Difference Between Cyberbullying and Cyberstalking

Posting harmful information on the internet is not the same as cyberstalking. Even though these crimes are similar because they involve using electronic communication devices to inflict harassment and fear, they are distinct offenses.

The primary difference is that cyberstalking under PC Section 646.9 entails utilizing the internet and other forms of electronic communication to harass or threaten a victim. In contrast, cyberbullying entails the electronic sharing of information to encourage people to harass or threaten the victim. Consequently, 653.2 PC is also referred to as indirect electronic harassment. On the other hand, cyberstalking is also known as direct electronic harassment.

How Cyber-Harassment and Domestic Violence Relate

Per California statute, domestic violence or domestic abuse is any form of physical action or threat of action aiming to inflict harm upon any party listed under California Family Code (FAM) 6211. This could be a child, parent, cohabitant, spouse, domestic partner, or somebody with whom you have or had a romantic relationship. Should you post, send, post, or distribute any harmful content that is meant to inflict harm upon your romantic partner, it will be deemed domestic abuse, although it will be penalized separately.

Consequences of Cyber-Harassment

Under California statute, posting harmful content on the internet is deemed a misdemeanor offense. If found criminally liable, you could be subject to a maximum of 12 months in jail, a court fine that is not more than one thousand U.S. dollars, and a misdemeanor probation sentence. The judge may impose misdemeanor probation rather than, or in addition to, jail time. Additionally, the judge might order that you enroll in a counseling or similar program.

Consequences of Misdemeanor Domestic Abuse

If the presiding judge has found you criminally liable under 1203.097 PC, you will likely be subject to the following consequences:

• A minimum fine of $500, plus court assessment and penalty costs.
• Attend a women's batterer’s program for fifty-two weeks.
• The judge may issue a restraining order against you to ensure peaceful contact and engagement between you and the victim.
• Probation for at least thirty-six months.

Should you violate 1203.097 PC by posting harmful information on the internet, the judge will order a probation sentence against you. The judge will actively assess your probation progress to determine whether you comply with all the terms. Failure to adhere to the imposed terms could lead to the judge revoking your probation sentence, imposing jail time, or imposing harsher probation terms.

Defending Against 653.2PC Violation Charges

Developing a solid defense strategy is critical if you are charged with cyber-harassment under 653.2 PC. There are various defenses an experienced cybercrime defense attorney can explore on your behalf to prove your innocence. These include:

First Amendment Considerations

You may successfully assert that your actions fall within the boundaries of your First Amendment rights as a defense strategy if your communication was not threatening and fell under protected speech. Whereas there are restrictions on free speech, given types of expression might be constitutionally protected, and an experienced lawyer can assert that the posted information falls within these protected boundaries.

Consent

The judge may dismiss your charges if your legal counsel can demonstrate that the supposed victim agreed to publish their information.

Mistaken Identity

In this digital era, misidentification is a common occurrence. Your lawyer may submit evidence demonstrating that you were not the individual liable for the supposed cyberbullying activities.

Insufficient Evidence

Arguing the inadequate evidence defense is also an effective way of proving your innocence if the district attorney cannot show that you committed the crime. Sometimes, the district attorney may find evidence linking you to the offense but inadequate to warrant a conviction. Recall that for the judge to convict you of violating 653.2 PC, the prosecution must demonstrate all the facts making up the crime. If there is missing evidence, it will be challenging for the judge to find you guilty of this offense.

Lack of Intention

Proving cyberbullying charges revolves mostly around intention as one of the critical elements. If you argue this defense, you must admit that you posted the victim’s information online. However, you must demonstrate that even though you did it, your actions were misconstrued, and you never intended to inflict any harm or fear. If your lawyer can prove you either never intended to provoke or incite other people to cause fear to or harass the victim or never intended to make them fear for their safety or the safety of their family, it could create a valid defense, and the judge may dismiss your charges.

Withdrawal

To argue this defense strategy, you also have to admit that you published or posted harmful content about the victim using an electronic communication device. However, you must demonstrate to the judge that you quickly realized the content harassed the victim and pulled it down immediately. In many cases, individuals post or publish harmful information out of jealousy or anger, then later realize the content is harassing and take it down.  

Coercion

If someone forced you to act unwillingly, the coercion defense would apply. This primarily occurs when a person compels you to send or post harmful content because they have material they can use against you. Most people are forced to do something via blackmail. But you must demonstrate before the court that the content you posted or published was forced.

Procedural Defense

Reviewing the procedures taken during the arrest and investigation is critical. Constitutional rights violations, mishandling of evidence, or procedural errors could be legal grounds for a valid defense strategy. This might involve filing motions to suppress given elements of the case or contesting the admissibility of evidence.

Police Misconduct

The police misconduct defense strategy applies in two different ways: if law enforcement never read your Miranda rights to you and if they searched you illegally. Regarding Miranda rights, California law requires that every arresting officer read a suspect's Miranda rights before interrogation. If the law enforcement officer who arrested you failed to read your Miranda rights before interrogating you, the court may dismiss the evidence acquired after the questioning.

Also, the law necessitates that an arresting officer obtain a search warrant before conducting a search or seizure. The judge may strike out any evidence acquired during the unlawful search if the officer lacked a warrant while searching your person or property.

Contextual Misunderstanding

Sometimes, harmless content may be taken out of context, resulting in misunderstandings. In this case, your defense strategy could involve submitting arguments or evidence that clarifies the content of the posted information, demonstrating that it was not meant to inflict harm and that the prosecution misconstrued it.

False Allegations

Proving you never posted the harmful information, but someone else did can be a solid defense strategy. This may entail presenting evidence like witness testimonies, alibis, or digital forensics to show that you had nothing to do with the posted information.

Innocence

Arguing innocence is among the most prevalent defense strategies that can apply to almost every criminal charge. You can assert that you never took part in the said activity. In this case, you will deny that you never posted any harmful content about the victim involved if you truly never did it. It could be that someone else posted the content and blamed you, or they impersonated you.

Involuntary intoxication

The involuntary intoxication defense is irrelevant in many cases, and the judge does not deem it valid enough unless the intoxication was forced. If your lawyer successfully proves someone drugged you, the judge might deduce that you were not in your right state of mind and your action was due to intoxication.

Duress

Duress is defined as a more severe form of coercion because it entails more powerful individuals, such as law enforcement. If a law enforcement officer threatens or blackmails you to publish harmful content regarding someone to punish you, you could argue this defense strategy to challenge your charges.

653.2 PC Violations and Related Crimes

Several crimes are prosecuted alongside or rather than a 653.2 PC violation because they have similar elements. These are known as related crimes, and they are as follows:

288.2 PC, Sharing Harmful Matter With Children

288.2 PC criminalizes sharing harmful matters with children below eighteen years old to arouse yourself or the child sexually and engage in sexual intercourse with them. Doing this is deemed a wobbler violation. A misdemeanor conviction carries one year in jail and a fine not exceeding one thousand U.S. dollars. A felony conviction is punishable by a prison term not exceeding three years, one thousand U.S. dollars in court fines, and a possible sex offender registration requirement under 290 PC.

422 PC, Criminal Threats

This law criminalizes making a criminal threat or threats to somebody else. In this scenario, criminal threats involve the intention to inflict significant bodily harm on or kill a person, or make them fear for their safety and the safety of their family members.

Violating 422 PC is categorized as a wobbler. If convicted of a misdemeanor, you will face a one-year jail term and a fine not exceeding one thousand U.S. dollars. If found criminally liable for a felony, you will have three years of state prison and a fine not exceeding ten thousand U.S. dollars.

647(J)(4) PC, Revenge Porn

PC 647j4 criminalizes circulating someone else's sexual images without consent from them. The individual may have consented to taking the photos, but posting them on the internet intending to cause them emotional distress will be abusing their privacy.

This crime is considered a misdemeanor punishable by six months in jail, up to one thousand U.S. dollars in fines, and informal probation.

653m PC, Annoying Emails, Messages, and Phone Calls

PC 653m criminalizes sending annoying emails and messages and placing repeated obscene phone calls to a person intending to annoy or harass them. Remember that this law does not exempt prank phone calls. You could be found guilty of violating 653m PC if you meant to prank someone. This crime is deemed a misdemeanor punishable by six months in jail, up to a thousand U.S. dollars in fines, and informal probation.

646.9 PC, Cyberstalking

This law criminalizes harassing or mistreating someone or their immediate family through electronic communication to the extent they fear for their safety. Cyberstalking is deemed a wobbler offense, meaning the D.A. may press a misdemeanor or felony charge based on the case facts and the defendant’s criminal history.

If the judge convicts you of a misdemeanor, you will be subject to a jail term of 12 months and up to one thousand U.S. dollars. If found guilty of a felony, you will be subject to a prison term not exceeding five years, up to one thousand U.S. dollars, and the likelihood of registering as a sexual offender for life, according to PC 290.

Irrespective of whether the judge has convicted you of a felony or misdemeanor, you could additionally be subject to:

• A protective order.
• Counseling.
• Commitment to a mental institution.

If the supposed victim is categorized under the domestic violence category, you will be subject to domestic abuse charges punishable by harsher penalties.

Working With an Experienced Cybercrime Defense Attorney

The role of cybercrime defense lawyers is pivotal in defending against PC 653.2 violation charges. These lawyers can develop a solid defense strategy tailored to the specific elements of every case. Their particular knowledge permits them to analyze the intricacies of digital evidence, legal precedents, and online communication.

Legal representation is more than simply defending against criminal charges. It could also assist in mitigating the possible repercussions of criminal accusations. Your lawyer can negotiate with the D.A., explore available plea deals, or even seek a charge dismissal if appropriate. Selecting the right cybercrime defense attorney is crucial to protecting your rights and pursuing the best possible outcome.

Find an Experienced Domestic Violence Attorney Near Me

If the prosecution has charged you with posting harmful content on the internet, do not tackle the legal intricacies alone. Call an experienced domestic violence lawyer for a dedicated and effective legal defense. At California Criminal Lawyer Group, we boast accomplished defense lawyers ready to provide the strategic defense and legal support you need to safeguard your freedom, reputation, and future. If you are charged in Fresno, contact us at 559-712-8377 to set up a cost-free consultation today to discuss your case. We will stand by you and help you find the best defense strategy for your case.