Legal Defense When Charged with Posting Harmful Information on the Internet
The California legislature passed a law in 2008 which makes it illegal to post harmful information on the internet. Penal Code 653.2 states it is a crime to post about other people on the internet in a way that will cause them harm.
If you, or someone you know, have been charged with this type of posting, you are facing criminal charges under the California computer crime laws. Contact a criminal defense attorney to protect your rights and ensure you receive a fair prosecution.
Posting harmful information on the internet is crime known as 'indirect cyber-harassment' or 'indirect electronic harassment.' It is committed by using an electronic device to post information about a person that may cause them harm, such as a third party harassing him or her.
There are two types of electronic harassment; indirect and direct:
Indirect electronic harassment is covered under Penal Code 653.2 and refers to the posting of information on the world web that will encourage others to stalk or harass another person.
Direct electronic harassment or cyberstalking is covered under Penal Code 646.9 and refers to the person posting the material to be the one personally stalking another
Definition of Indirect Electronic Harassment under California Penal Code 653.2
California Penal Code 653.2 defines indirect electronic harassment as follows:
- By use of an electronic device, you communicated through email or hyperlink to distribute and make available to others for downloading, personal identifying information about another person. The material communicated is of a harassing nature and could cause harm to the individual to whom it pertains
- The material was distributed through an electronic device without the permission of the individual
- You distributed the material with the intent to place the individual in reasonable fear for his or her safety, or that of their immediate family
- You communicated the material through electronic device onto the internet to cause the individual unwanted physical contact, harassment, or injury
- The information you posted is personal in content and identifies the individual and is likely to incite or produce unwelcome harassment, injury, or physical contact
Under California law, the word harassment is defined as knowingly and willfully taking a course of action or conduct that is directed at another individual for which any reasonable person would feel their safety is at risk. Harassment is an act found by any reasonable person to be seriously terrorizing, seriously tormenting, seriously annoying, or seriously alarming for no legitimate reason.
To be charged with posting harmful information on the internet, you could have used any one of these devices. These are considered to be 'electronic communication devices' under California law:
- Fax machine
- Telephone
- Video recorder
- Cell phone
- Personal data assistant
- Computer
- Internet phone
- Internet web pages or sites
If you've been charged with posting harmful information on the internet using an electronic device, you will need the help of a criminal attorney. You can be found guilty of indirect cyber harassment even if the individual you were targeting is not annoyed or harassed by another. The intended victim does not even have to be aware of the fact that you have distributed the material on the internet. This crime is much different than a criminal threat where the intended victim needs to be reasonably afraid for their safety as a result of the threat.
Consequences for Posting Harmful Material Electronically
Under California Penal Code 653.2, indirect cyber harassment is classified as a misdemeanor. A misdemeanor is considered a crime with a maximum sentence of one year in county jail. It is less serious than a felony but more serious than an infraction. There are two categories in which misdemeanors fall:
Standard
California misdemeanors are punishable up to six months in jail with a possible fine of up to $1,000.
Gross
Aggravated or gross misdemeanors are punishable up to one year in jail with a possible fine of up to $1,000 or more.
California classifies some crimes as 'wobbler' offenses. If convicted of a wobbler crime, the prosecutor can charge you with either a felony or a misdemeanor. How your 'intent' is established when you posted the harmful material on the internet will determine how your legal defense will be handled. You will need an experienced criminal attorney on your side to ensure your rights are protected if you have been charged with harmful postings on the internet.
Defense Against Posting Harmful Material on the Internet
If it has been proven your intent was harmful towards another when you posted the material, you can only be found guilty if you intended to put the individual in reasonable fear of their safety, or their family. You must also be guilty of intending to cause a third party injury, unwanted physical contact, or harassment in order for the prosecution to successfully convict of the charges.
The internet is full of humor, stories, and comments. Some of your communications could be misunderstood and result in the third party causing harm to an individual. If the material you posted was not done with the intent to cause harm, you could not be held responsible for the posting.
There are guidelines to follow when using the internet, social media and email in the United States. These guidelines are actually laws under the federal government, and it is suggested you check your state laws as they will either be the same or have additional conditions.
Cyberstalking and cyber harassment
Making a serious threat of violence against another person is illegal. Sometimes it is hard to distinguish if the threat is serious or not, and if it is unclear, it could be considered free speech and therefore not illegal. Online harassment is sometimes mistaken for free speech messages.
Cyberstalking is an illegal action and involves repeatedly harassing another person. A person is protected against cyberstalking and stalking when it makes them feel as though their life is in danger or the life of their family members. The police will investigate any reports received from someone who feels they are the victim of cyberstalking or stalking. If they find there is a potential threat, they will prosecute the offender.
Unauthorized access and hacking
Unauthorized access is defined as hacking by gaining access to a server, computer, cell phone, or another electronic device without owner permission. Hacking can range from highly sophisticated coding to breaking into a server to damage data to discovering one's password and using it to log onto their account without permission. This act is a federal crime under both state and federal laws.
If convicted of hacking, you could face up to twenty years in prison and face a possible fine of $15,000. You can also be convicted of hacking when you illegally intercept communications or information on the internet, known as wiretapping. Breaking into someone's email or their social media accounts such as Twitter or Facebook is considered hacking and punishable under both state and federal laws.
If not charged as hacking, these invasions could also be referred to as 'invasion of privacy.' This act is also a crime under state and federal laws, and if convicted, you could face up to fifteen years in prison. Under the same category of invading one's privacy is ransomware. This act involves installing software remotely to another's computer to allow you the ability to download or destroy the data. This computer crime is punishable under your state and federal laws. If you or someone you know has been charged with a computer crime, you need to contact a criminal defense attorney to protect your future and your rights.
Jamming a cell phone or wi-fi
Another electronic device or computer crime is illegally blocking or jamming another's cell phone, wi-fi connection.
Consumer rights and online shopping
Posting false or misleading information on the internet in the form of advertisement is as much against the laws as it would be to the printed world. The trouble with misleading online information is it goes a step further than in the printed world. For example, if as a business owner, you 'like' another company's comment and it is proven to be false, you can be held responsible.
Blame can also be placed on your company if you have an affiliate relationship with another business and you post an endorsement or review of its products without stating your affiliation. Contact a criminal defense attorney if you or your business is facing charges for posting any form of information on the internet which has been discovered by the law to be illegal. A defense against these charges is critical to the reputation of your company and your future.
Social media posting
It is illegal to distribute or use another's content without permission. Facebook and Twitter have Terms of Service that allow you to retweet or 'share,' so these sights make it possible to post other's material. Posting of someone's material that is not protected under those terms is considered illegal.
It is illegal to adapt, re-use, or take someone else's content without their permission. You must obtain the creator's permission before posting their material on your site. It is also suggested you link to their website. If you post without their permission, they will have the right to press charges against you.
An employer cannot restrict their employee’s use of social media as long as it is done on their own time. Posting negative comments; however, regarding your employer on social media does allow them to fire you legally. You are allowed to attempt to rally your fellow workers together regarding work-related issues. It is your legal right to try and join your co-workers to better benefits or pay.
You are not legally allowed to post serious threats to kidnap or harm another on social media. If convicted of this form of a post, you could face up to five years in prison. It must be proven you made an actual 'threat' and were not posting an expression. Having a criminal defense attorney on your side will help to make sure you receive fair prosecution.
The government cannot block you from commenting, viewing, or responding to their posts if they have set up social media accounts. Another rule regarding posting harmful material on the internet is social media sites or websites are not liable for comments or posts made by their users. Two exceptions to this rule include any site knowing about facilitation of sex trafficking of children and intellectual property infringement.
Personal data rights
In 2020, California has a law going into place, which is expected to go nationwide that will give you the 'right to be forgotten.' This right will allow you to see and delete the data a company has on you. Hacking, stealing, or improperly using someone's personally identifiable information will be considered identity theft and punishable under the law.
Personal data collected by companies on the internet with regards to your personal information will be determined by their company policies. An example would be Facebook's privacy policy as it states what can't and what can be done with your data. This policy establishes a contract, so when you agree to their terms, you can use their site. If Facebook violates their policy, or someone hacks their system, you may be due monetary compensation. Contact a criminal defense attorney if you believe your rights have been violated, and your personal data has been compromised.
Revenge porn occurs when you agree to have nude pictures taken of you to post on the internet along with the understanding it will stay private. When these pictures are later posted online to cause harm, it becomes an illegal act and will be punishable by the law. Depending on the state you live in, people have the right to post presentable photos they have taken in public places. If the person doesn't have a reasonable expectation of privacy, and the photo or picture is taken in a public area, you are allowed to post on the internet as long as you are not doing so for profit.
Information that is considered 'public' can be posted online. If the information is not 'public,' then it could be a violation of privacy. If you post material online which has not been determined as private, you could be facing criminal charges.
Is it legal to send spam or junk emails?
It is legal to send junk emails and spam as long as the company includes a physical address from the originating point, the advertisement identifies itself as an ad, includes a way to 'opt-out' of future messages, and is not abusive or deceptive in nature.
Your rights to create content and post on the internet
Copyright laws apply to the internet, but the rules are tricky when it comes to social media. When you have personally created material such as written a blog, updated your status, taken a photo, or written any original material, it means you own the copyright to this material. With the copyright being yours, it is your right to decide what happens with this material and what others can or cannot do with it.
Personal writings have to be substantial in length in order to receive copyright protection. This rule makes most tweets too short to qualify. If you take a photo from your camera, it is normally considered to be your property, and you own the copyright, but you do have to ensure the photo does not violate privacy laws. Social media sites, such as Facebook do state in their Terms of Use that you give up your right to other users to share your content. These terms do not mean you've given up ownership, so you are able to pull the content from the site if you do not like how it is being used
Why You Need Criminal Defense When Charged with Posting Harmful Material
You need a criminal defense attorney working with you to either help get the charges dismissed or earn you an acquittal. To obtain an acquittal, all the evidence brought against you has to be uncredible, and the judge will completely clear you of charges. The law is a complicated process, and you will need someone on your side who understands the courts and the legal system.
Contacting a Posting Harmful Information on the Internet Lawyer Near Me
If you or someone you know has been charged for posting harmful material on the internet, you need legal representation. Call our Los Angeles Criminal Attorney 818-484-1100 and speak to a team member with Leah Legal. We have the experience and knowledge of working in the criminal law system to help you through this difficult challenge. Look further through our website to see a full list of legal issues we can help you with to protect your rights and your future.