The arrival of the digital age has also, unfortunately, come with new ways to harass, bully, and threaten others. For this reason, California legislators have passed new laws to address these issues.
To that end, Penal Code 653.2 PC criminalizes the act of electronic cyber harassment, also known as cyberbullying. This law makes it a crime to send electronic communications (texts, emails, etc.) to place the recipient in reasonable fear for their safety or that of their immediate family. You could face up to a year in jail if convicted of this crime.
Simply put, this law makes it a crime to post certain types of harmful information about another person on the internet. Electronic harassment is not the same as Penal Code 646.9 PC cyberstalking. To be charged under PC 653.2, the defendant only needs to post information on the internet that would encourage other people to harass or stalk the victim.
PC 653.2 says, “(a) Every person who, with intent to place another person in reasonable fear for their safety, or the safety of the other person's immediate family, using 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 county jail, by a fine of not more than $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 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.”
Cyber Harassment – Explained
PC 653.2 effectively details how California defines cyberbullying and harassment. According to the law, it is a crime to use an "electronic communication device" to distribute, publish, email, hyperlink, or make available personally identifiable information or a harassing message about another person without their consent and with the intention to incite fear for their safety or that of their immediate family.
The law specifies that the intent must be to cause unwanted physical contact, injury, or harassment by a third party. The term "electronic communication device" covers a broad range of devices, including but not limited to:
- Telephones,
- Cell phones,
- Computers,
- Internet Web pages or sites,
- Internet phones (VoIP),
- Hybrid cellular/Internet/wireless devices (e.g., smartphones),
- Personal digital assistants (PDAs),
- Video recorders,
- Fax machines, or
- Pagers.
The law defines "harassment" and "of a harassing nature" as actions or messages that a reasonable person would consider seriously alarming, annoying, tormenting, or terrorizing, which serve no legitimate purpose.
What Factors Must Be Proven for a Conviction?
For someone to be convicted under PC 653.2, the prosecution must prove the following elements:
- You knowingly and willingly sent, delivered, or made available harmful information about the victim to other people, including their personally identifiable information.
- You did so with the use of an electronic communications device.
- You did so without the victim's consent.
- You did so intending to incite or provoke unwanted physical contact. injury, or harassment to the victim.
- The identifiable information you provided was reasonably likely to produce this effect, and
- You did so to make the victim feel harassed, threatened, and in fear for their safety or that of their loved ones.
What are Some Examples?
EXAMPLE 1: Jordan posts malicious posts regarding Jake on a popular social media platform. These posts contain false accusations about Jake's personal and professional life, tarnishing his reputation and putting him in fear for his safety. Jordan can be charged with cyberbullying.
EXAMPLE 2: Taylor has a vendetta against a classmate, so she group-texts a set of their mutual friends with lewd photos in which the classmate's head has been "Photoshopped" onto a naked body. Taylor could be charged with cyberbullying.
Is This the Same Crime as Cyberstalking?
No, it's not. While cyberstalking and cyberbullying are similar in that they both use electronic communication to cause fear and harassment, they are two separate offenses. The main difference is:
- Penal Code 646.9 PC cyberstalking involves using the internet and other forms of electronic communication to threaten or harass a victim and
- Penal Code 653.2 PC cyber harassment involves sharing information electronically to encourage others to threaten or harass the victim. For this reason, PC 653.2 is also called "indirect cyber-harassment."
What are the Penalties for Cyber Harassment?
Under California law, cyberbullying is considered a misdemeanor. If convicted, you could face:
- Up to one year in county jail,
- A fine of up to $1,000,
- Misdemeanor summary probation.
The court may impose summary probation in addition to or instead of jail time. In addition, the court may order you to participate in counseling or a similar program.
What are the Common Legal Defenses?
If you have been accused of cyber harassment under PC 653.2, there are several defenses that your California criminal defense lawyer may consider, such as the following:
- Lack of Intent: Proving cyberbullying hinges mostly on intent. If your attorney can show that you either did not intend to incite or provoke others to harass or cause fear to the victim or did not intend to make the victim fear for their safety, this could form a viable defense.
- Mistaken Identity: In the digital realm, misidentification is common. Your attorney may provide evidence proving you were not the person responsible for the alleged cyberbullying activities.
- Consent: If your attorney can show that the alleged victim consented to have their information published, the charges may be dismissed.
- First Amendment: If your communication was non-threatening and falls under protected speech, you might be able to argue that your actions were within the boundaries of your First Amendment rights.
Contact our law firm for more information. Eisner Gorin LLP is based in Los Angeles, CA.
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