The internet has grown to an extensive network over the years. Many people have ended up committing internet-related crimes, which have led to severe penalties. In California, there are various laws to deal with crimes related to the internet. Part of these laws includes fighting against posting harmful information online. Under this law, a defendant can face a jail sentence for up to a year. We at Los Angeles Criminal Lawyer will help you build a defense strategy that would help in having all possible penalties reduced or have the court drop your charges.
How Posting Harmful Information on the Internet is Defined In California
Every legal aspect related to posting harmful information on the internet or indirect harassment using electronic devices is described under PEN 653.2. This statute can be described in the following way:
- You used an electronic communication device to post harassing information about another person by distributing, publishing, hyper-linking, or making it available for download
- Without the other person’s consent
- You intended to cause unwanted harassment, injury, or physical contact on another person
- The other person realized that the message or information you shared would possibly incite or achieve your intentions.
Below is a comprehensive description of the elements of the crime that rise from the description provided above.
Electronic Communication Device
For a person to be prosecuted under PEN 653.2, the harassing information must be circulated through an electronic communication device. The following are some types of electronic communication devices that can be used to post harmful information.
- A website
- Cell phone
- Fax machine
- A video message
- Text message
- Any other electronic device
Please note, the types of electronic devices described under this statute is not limited to above-stated examples. It might include any other form of communication that can help in posting information online.
Without Consent of Another Person
Consent is the formal agreement from a person to undertake a certain action. You can get consent from a person by having him or her agreeing to your request. When there is no agreement from another person to be involved in something that he or she is included, this would be a violation of the respective person’s rights.
Harassment can be described as a willful and knowing course of conduct that a specific person would reasonably consider being alarming, annoying, tormenting, or terrorizing. The intention to harass another person would not serve any legitimate purpose, making it offensive.
The aim of posting harmful information about another person is causing fear. In that case, if your information does not frighten the target person, it would not be considered harmful. This would nullify any prosecution attempts under California PEN 653.
The other Person Identified your Intention to Cause Fear
The target person must acknowledge your intention to cause fear or terrorize him or her through the harmful information that you had circulated to make the prosecution under California PEN 653.2 valid. A targeted person would establish that he or she has been terrorized by reporting the information you have posted online.
How Indirect Harassment and Domestic Violence Relate
In California, domestic violence can be explained as a threat intended to harm an intimate partner. Since harassing another person counts as a way to hurt the person, it would be reasonable to conclude that there is a relationship between the two. Furthermore, under PEN 1203.097, domestic violence does not only involve physical abuse or harm as long there is intended harm on the target person.
Therefore, posting harmful things online to harm your intimate partner would be considered as domestic violence, although it is prosecuted under a different statute.
Under California domestic violence laws, an intimate partner can be defined as:
- Current or former spouse
- Current or former registered domestic partner
- Current or former fiance or fiancee
- Current or former cohabitant
- A person who has or had a child with the accused
- Someone who the accused was or is seriously dating
Penalties for Indirect Harassment on the Internet in California
Posting harmful information online is a California misdemeanor crime. The probable penalties that an offender can face include:
- Summary or misdemeanor probation
- Up to one year sentence in county jail
- A fine of up to $1,000
Conditions for Misdemeanor Probation
If the court grants summary probation to you, there are specific conditions that you must follow. Failing to follow these regulations would reinstate your initial penalties. Some of the terms that might be imposed on you are as follow:
- Paying the fine and court expenses
- Participation in a group or individual therapy
- Complete Caltrans roadside work or community services
- Show up at all court dates
- Subjection to a restraining order
Legal Defenses for Violating PEN 653.2
Once you hire an attorney, you expect him or her to use appropriate legal arguments to dismiss or reduce your charges. A reasonable lawyer should evaluate the nature of your case and look for excellent legal defenses that would meet your expectation. The purpose of these legal defenses is to establish loopholes in the aspects that the prosecutor presents in court. Below are a few legal arguments that you expect your attorney to use.
Lack of Intention
You need to agree that you had posted some information on the internet while using this legal argument. However, you should prove that you had no intention to cause fear for your domestic partner, and probably your information was misunderstood. Once you have established this fact to the court, it will be hard for the prosecutor to proceed with the prosecution since there is no valid reason for the legal action presented against you.
Once more, you should agree that you had circulated harmful details online to rely on this argument. However, you should prove that you withdrew the information once you realize that it was harassing. Usually, most people recognize the harassing nature of their information if they post it out of anger or defense. However, once they revisit the information, they realize that it is harmful and decide to pull it down.
Innocence is a common legal defense that anyone can use in any type of prosecution. It involves the complete denial of being involved in the alleged criminal activity. In this case, you will have to deny any harmful post about another person; if for sure, you did not post it. Most probably, someone else posted the information and tried to make you responsible for the actions.
In some cases, the investigation team might collect evidence to prosecute you but fails to be sufficient enough to prosecute you. The investigation team might lack enough evidence against you when there are several pieces of evidence linking you to the offense, but there is something missing that would make you sufficiently culpable of the crime.
Coercion involves being pushed to get involved in something that you cannot do willfully. In most cases, coercion works when another person has something against you that would force you into posting something harmful on the internet. Most people are coerced when the other person blackmails them. Whenever you intend to rely on this legal argument, you should prove the element used against you that forced you to circulate harmful information on the internet.
Duress can be explained as a severe type of coercion that involves people in authority, like the police. Sometimes someone in authority can compel you to circulate harmful information on the internet targeting your spouse to get back to you due to existing bad blood. In most cases, police officers achieve their goals by threatening you or your family.
Police misconduct usually falls into two forms. The first form involves failure to read Miranda rights while the second one involves unlawful searches and seizures. In terms of failing to read out the Miranda rights, the police officer involved in your arrest should read the Miranda rights to you as a constitutional requirement. If he or she fails to warn you about your rights, the evidence collected against you might be denied by the court.
On the other hand, unlawful search or seizure is a constitutional right that requires the investigating officer to acquire a search warrant when investigating your property. Once more, any evidence that they collect out of an unwarranted search or seizure might be rejected by the court.
Please note, the fact that police officers violated your constitutional rights does not entirely mean that your case will be dismissed. The prosecutor might decide to charge you with a lesser offense or seek lenient penalties against your charges.
Using intoxication is not necessarily viable unless you were compelled. Involuntary intoxication involves a situation where you were drugged without your consciousness, or you were drugged. Once you are intoxicated, the judge or jury will assume that your actions were influenced by your involuntary intoxication. In that case, you have the burden to establish you were not responsible for the intoxication to depend on this argument
Crimes Associated with Indirect Internet Harassment in California
There are certain offenses that are close to PEN 653.2. Most of these offenses are usually prosecuted along, mentioned, or share similar criminal charges with posting harmful information on the internet. Below are a few crimes related to PEN 653.2.
Annoying Text, Phone Calls, and Emails: PEN 653m
According to PEN 653m, committing a crime of annoying phone calls involves making an obscene telephone call on a series of repeated calls to annoy, harass the recipient of the call. It also consists of sending annoying emails and messages.
Please note, even prank phone calls can also be considered as annoying and have you prosecuted under this crime.
Violating this statute is a California misdemeanor. The potential consequences of violating this statute include a conviction in a county jail for up to 6 months, a fine of up to $1,000, or both. You can also be sentenced to misdemeanor probation, where he or she might be ordered to participate in a counseling program.
California Cyberstalking laws: PEN 646.9
According to PEN 646.9, stalking someone using an electronic communication device is considered a crime. Under this statute, stalking is defined as threatening or harassing another person until he or she feels unsafe. It also involves any threats made towards the targeted person’s family.
In California, cyberstalking is considered a wobbler. This means that one can be charged with a felony or misdemeanor based on the crime’s facts and the offender’s criminal history. If one is accused of misdemeanor cyberstalking, the possible sentence includes a maximum of a year sentence in county jail and a fine of up to $1,000.
For a felony cyberstalking, the possible penalty that an offender might face include a maximum of five years sentence in the California State Prison, a fine of up to $1,000, and a potential lifetime registration as a sex offender according to PEN 290.
Both misdemeanor or felony cyberstalking can also subject you to counseling or possible confinement in a state-run hospital that deals with mental illness and a restraining order that disallows you to make any contact with the alleged victim. Also, if the target victim is a domestic partner, you will likely be prosecuted under California domestic violence law that subjects you to possible additional penalties.
Criminal Threats: PEN 422
According to PEN 422, threatening to harm or kill another person physically is considered a crime in California. These criminal threats include threats to death or significant bodily injury intended to cause reasonable fear or safety to the target person or his or her family.
Criminal threats are considered a wobbler in California. This means that the offender can be charged with a felony or misdemeanor. If you get a misdemeanor conviction, the potential penalties include up to a year in county jail and a fine of up to $1,000. For a felony conviction, the potential penalties include up to three years in the state prison and a fine of up to $10,000.
Revenge Porn: PEN 647(j)(4)
PEN 647(j)(4) came into effect in 2013. Under this statute, it is a crime to intentionally distribute another person’s sexual image that he or she would have kept private, to cause emotional distress on the respective person.
Violating PEN 647(j)(4) is considered a misdemeanor, and an offender can end facing up to six months in county jail. It also attracts a fine of up to $1,000 or subjects the offender to misdemeanor probation instead of jail time.
Sending Harmful Material to a Child: PEN 288.2
Under PEN 288.2, it is a crime to send harmful or obscene material to a child to arouse yourself or the child sexually, and have sex with the child. A minor is described as any person below the age of 18.
Violating this statute is a wobbler, meaning that the offender can be prosecuted with a misdemeanor or a felony. If one is sentenced with a misdemeanor, the probable penalties include a maximum of one year in county jail and a fine of up to $1,000.
A felony conviction is punishable by custody in the state prison for up to three years. An offender can also face a fine of up to $10,000. A felony conviction can also result in lifetime registration as a sex offender under PEN 290.
Different Violations Related to the Use of the Internet in California
Apart from cyberstalking and harassment, other violations are related to Internet use in California. These violations can be linked to or associated with the posting of harmful information on the internet. They are as follows.
Unauthorized Access or Hacking
Unauthorized access can be defined as gaining access to a cell phone, computer, server, or any electronic device without the owner’s permission. Hacking or unauthorized access involves a sophisticated process. If one is convicted for such crimes, you might face a maximum of twenty years in prison or a possible fine of up to $15,000.
Cell Phone or Wi-Fi Jamming
Cell phone or Wi-Fi jamming is another possible internet violation in California. This violation can be associated with the posting of harmful information on the internet and might include additional penalties.
Social Media Posting
It is illegal to use another person’s social media account to share information on the internet. In that case, if one uses your personal social media account to post harmful details, he or she will face additional penalties. If the information involves harmful threats to kidnap or harm the other person, one might encounter a maximum of five years in prison.
Find a Criminal Lawyer Near Me
Posting harmful information online can lead to a jail sentence or a hefty fine. That’s why it is crucial to hire a professional attorney to help you with your case. At Los Angeles Criminal Lawyer, we are the best firm to rely on when accused of internet harassment. We have a strong record of winning the best outcomes for our clients over the years of practice. Contact us today at 310-502-1314, and we will give you immediate assistance and a free legal consultation.