The internet has increased connectivity and the sharing of information. People are now able to post information with a few clicks. Few people pause to evaluate the consequences of the materials they post online, and could potentially face charges of posting harmful information on the internet.
You have probably heard of the term "doxing," a word used when referring to the publishing of the private information of another person, often with malicious intent.
Posting harmful information on the internet is a relatively new crime introduced due to the rising concerns over cyber harassment. The LA Criminal Defense Law Firm helps you or your loved one when you are facing criminal charges for posting harmful information on the internet. We work to protect your rights and provide the best possible defense.
Overview of Posting Harmful Information on the Internet
California Penal Code 653.2 prohibits the posting of harmful information about another person online. The offense is a form of indirect cyber-harassment as it allows other people to harass or stalk the victim.
Cyber harassment is a growing concern in schools, the workplace, and at home. People can post derogatory information or encourage other people through the internet to annoy, harass, or exert their revenge upon you.
Posting harmful information can be a form of domestic violence if the victim is a person with whom you have or have had a romantic relationship. It happens when one of the partner’s posts harmful information on the internet after a disagreement or breakup.
Such information can be used to manipulate the victim into submission or to subject him or her to more violence from the abuser and third parties. California identifies actions taken by third parties against the victim and following the actions of the defendant as a crime.
In most cases, the third parties will harass the victim by:
- Sending unsolicited emails or letters (including threatening or obscene messages)
- Derogatory comments about the victim
- Appearing at the physical address of the victim
- Sending offensive (usually pornographic and graphic materials) to the victim
The defendant does not have to harass or stalk the victim to be guilty of indirect harassment. Instead, he or she only needs to provide the information that will encourage a third party to annoy, harass, or injure the victim.
Other motivations that lead an offender into posting harmful information about the victim include:
- To revenge against the victim
- To harass the victim
- To shame the victim online
- For extortion or coercion (demanding that the victim fulfills several conditions for you to remove the information online)
The court requires the prosecution to prove all elements of the offense beyond a reasonable doubt. These elements are also the legal definition of posting harmful information on the internet. They include:
- You published, distributed, emailed, hyperlinked or made available for downloading any identifying of another person or a harassing message to another person using an electronic communication device
- Without the consent of that person
- With the intent to place the person in fear for his or her safety or that of immediate family members
- You acted with the intent to cause that person unwanted physical contact, harassment or injury
- The information you shared was likely to cause unwanted physical contact, harassment or injury
Electronic communication devices include cell phones, telephones, computers, web pages, websites, personal data assistants, fax machines, and video recorders.
California defines harassment as willfully and knowingly:
- Directing an action towards a specific person
- The action does not serve a legitimate purpose
- The action is alarming, annoying or terrorizing to a reasonable person
Posting harmful information about someone on the internet could also be punished as the broader offense of cyberstalking.
Posting harmful information about another person falls outside the scope of your first amendment rights to free speech. Therefore, you cannot invoke your first amendment rights after posting the personal information of another person for malicious intent.
Some of the actions that could lead to charges of posting harmful information online include:
- Sharing the address (email or physical) of a person and encouraging others to help you teach the victim a lesson for something they did or did not do
- Posting defamatory information about the person or encouraging another person to do so, whether the information is true or not
- Posting fake ads such as those asking for sex and leaving the victim’s contact information there
- Sending harmful information to the employer of the victim to shame the victim or get him or her fired
Sharing compromising information (sexually explicit, information about illness) of an identifiable on social media sites with the intent that other people use that information to harass the victim
Consequences of Violating PC 653.2
Posting harmful information on the internet is a misdemeanor. The penalties include:
- A maximum term of one year in county jail
- A fine of up to $1,000
- Misdemeanor probation
If the victim is a domestic partner or a person with whom you have or have had a serious romantic relationship or a blood relative, then the court will impose additional probation requirements under PC 1203.097. Some of the additional probation requirements include:
- You must be on probation for at least 36 months
- The court might order a restraining order to prevent you from making contact with the victim
- Mandatory enrollment in a 52-week batterers program
- Payment of at least $500 and additional court assessment fees and fines
You must also check in with the court regularly to track your performance on probation and the batterer’s program. If you fail to adhere to any of the probation conditions, you are considered to have violated your probation. You will face additional fines and possible jail time.
Other penalties of posting harmful information on the Internet in violation of domestic violence laws could also subject you to penalties such as:
- Mandatory minimum jail time of thirty days
- Payment of victim restitution to cover the costs or damages incurred by the victim due to your violation
- Payment into a domestic violence fund
- A permanent criminal record
You will also be found guilty of the offense if you are a conspirator and were working together with the defendant in posting harmful information online. You will face similar penalties as the offender.
By merely using the internet to post the harmful information of another person, you could be guilty of violating federal laws.
A permanent criminal record appears on your background checks. This means that potential employers, property owners, and even potential partners can see your criminal record and make an unfavorable decision against you.
State professional license bodies could also refuse to issue you a professional license because of your criminal record.
Posting harmful information is an intent crime. Therefore, the biggest defense involves showing that you did not have the intent to cause the victim fear or harassment from other people. Proving intent is usually hard for the prosecution to do.
You can show that you lacked the malicious intent to commit a crime if:
1. The Victim Posted the Information
If a victim has posted information that could be used by another person to stalk or commit another computer-related information, then you cannot be guilty of the offense. For example, some social networking sites request the identifying information of another person, such as:
- The date of birth
- Place of birth
- Current residence
- Email address
- Phone number
If the victim leaves this information visible to the public, you cannot be held liable for any harassment that results. Any person with a social networking account can view the information and use it to commit a computer crime.
2. False Accusations
False accusations could arise that someone posted harmful information on the internet. For instance, if another person creates a clone account similar to yours and uses it to post harmful information about someone, then you could be arrested for a crime you have not committed.
Mistaken identity also leads to false accusations when the victim suspects you of having posted his or her information online. If the prosecution cannot provide sufficient evidence to link you to the offense, you cannot be convicted for the offense.
False accusations could also arise out of a desire by the “victim” to get revenge for something you did or did not do. If the victim has access to your phone, he or she could post harmful information about themselves and accuse you of the offense.
When you are charged with an offense based on false accusations, you must contact an attorney. Do not anticipate that the court will rule in your favor because you are innocent.
You must be ready to present evidence that supports your claim of innocence and attempts to uncover the truth about the accusation.
In some cases, false accusations can arise because you have been prosecuted for a similar crime before. However, you can defend yourself by asserting your right not to be persecuted based on a previous offense.
Some of the evidence your attorney can use to debunk false accusations include:
- Audio recordings
- Your email and other electronic communications
- Video recordings
- Tracking your social media activity including deleted messages
Hackers can gain unauthorized access into a computer system or networking account of another person. When these hackers access personal or identifying information, they can post it online.
Hackers can also take control of your social media accounts or create fake emails in your name and use them to post harmful information about others on your pages. This can lead to you being wrongfully arrested and convicted of a crime you have not committed.
Fighting cybercrime charges can often get complicated, especially if someone has unauthorized access to your account. The best way to tackle the charges you are facing is by hiring an attorney who has experience in dealing with cybercrimes.
Sometimes, it is possible to have your charges dismissed. However, if you are converted, there are measures you can take, some with the help of your attorney to avoid or reduce the negative consequences of a conviction.
Some of these measures include:
- Avoiding contact or communication with the victim to prevent additional charges for violating a restraining order. Sometimes, the victim can sue you for other crimes such as stalking if you continue contacting him or her.
- Obeying the laws of the state and any conditions, the court imposes as part of your probation. In case you commit a violation, have an attorney to defend you, and prevent the filing of charges for a probation violation.
- Have your arrest record sealed: this applies to you if you were not convicted but had been arrested for posting harmful information on the internet. Sealing your arrest records prevents access to these records by the public. It will be as if you were never arrested.
- If you were convicted, you could have your records expunged. Expunging a criminal record enables you to live without the negative consequences of that record. You can access employment and educational opportunities like others. Even if an employer becomes aware of your conviction, he or she cannot make any employment decisions based on your expunged criminal record.
- Immediately after the conviction, you can file for an appeal
Appealing Your Conviction
An appeal gives you a second chance to defend yourself against criminal charges. However, this limited process does not offer the freedom and flexibility of a criminal trial. Some of the things you cannot do in an appeal include:
- Introduce new evidence
- Have the case retries
- Introduce witnesses
The appeal process in California is a limited review by the appellate court to determine whether the prosecution, attorneys, judges, or jury made errors that violated your rights. You can, therefore, appeal a conviction on several grounds including:
- The officers did not have the proper authority to arrest you (for example, they did not have an arrest warrant or violated your rights against illegal search and seizure when arresting you)
- The judge made a mistake in admitting or excluding evidence (judges hold special hearings with the defense and prosecution to determine the type of evidence that is admissible in court. However, the judge could make errors which could lead to your wrongful conviction)
- The prosecution had insufficient evidence to prosecute you: prejudice and emotion can often interfere with the jury’s decision leading to an unfair ruling without considering the weight of the evidence against you. If the evidence used to convict you does not meet the standard of “beyond a reasonable doubt," you can use the insufficient evidence argument to have the conviction overturned.
- Ineffective assistance of counsel: not all defense attorneys are made equal. If you hired an attorney who turns out to be incompetent, he or she deprives you of the right to a fair trial. You can, therefore, appeal to the court to overturn the conviction or call for retrial of the case with a competent attorney. When using this argument, the court will examine the professional conduct of the attorney and actions or inactions to determine whether they are reasonable under the professional norms of the practice. The court must also establish that the incompetence of the attorney contributed to prejudice.
- Misconduct by the prosecution by engaging in dishonest, reprehensible, or prejudicial actions that undermine the fairness of your conviction. If you can prove that the prosecution engaged in misconduct, the appellate court can call for retrial of the case. Some of the common forms of misconduct include intentionally misstating laws or evidence, appealing the prejudices of the jury, and commenting on inadmissible evidence.
- Misconduct of the jury to the extent that the behavior compromises your right to a fair trial is a favorable ground for appeal. Jury misconduct could include activities that cause prejudice and unfairness in the trial, such as failing to deliberate or purposefully concealing information that is important to a trial.
- Errors in sentencing including failure to comply with the rules on sentence hearings, sentencing the defendant for multiple charges when only one charge is applicable (if you can prove that the judge engaged in sentencing errors could result in a resentencing and consequently, a lesser sentence)
If the appellate court rules in your favor, you could be eligible for a new trial, reversal (read dismissal of your charges), or a remand.
Posting harmful information has some elements that match or are closely related to other cybercrimes in California. Depending on the extent of your violation, you could be charged with one or more related offenses. The charges you face will also depend on the age of the victim, the type of harmful information you shared, and the further actions you took against the victim.
1. Cyber Stalking
Cyberstalking is the crime of stalking or harassing someone through an electronic communication device. PC 646.9 prohibits cyberstalking which it defines as:
- Maliciously and willfully harassing another person
- Making a credible threat against the victim
- Which puts the victim at a reasonable fear for his or her safety or that of the immediate family
- You used an electronic device to communicate the threat
Cyberstalking involves a broad range of activities that could also refer to separate laws, such as posting harmful information on the internet.
- Unwanted, unsolicited emails aimed at threatening or harassing the victim
- Unwanted messages or sexts
- Posting disturbing or offensive messages to a chat room or online forum while posing as another person
- Posting information meant to embarrass or humiliate the victim
- Posting the personal information of another person and encouraging others to harass the victim
- Logging in to the accounts of the victim to commit fraud
Like posting harmful information on the internet, cyberstalking is an intent crime. The major difference between the two is that:
- Cyberstalking involves direct threats to the victim by the offender
- Cyberstalking often involves repeated actions that are meant to put the victim at risk or fear of their safety and that of their family
Cyberstalking is a more serious offense charged as either a felony or a misdemeanor. A misdemeanor conviction will involve a county jail sentence of up to one year and a fine of $1,000.
A felony conviction will include a state prison sentence of up to five years, $1,000 in fines, and lifetime registration as a sex offender (a possible consequence of committing cyberstalking for sexual gratification or compulsion).
You could also receive additional penalties, including:
- A one-year mandatory counseling program which could include confinement in a state mental illness hospital
- A restraining order preventing you from having any contact with the victim
- Additional penalties for victims who are your current or former intimate partner (cyberstalking in violation of California’s domestic violence laws)
2. Revenge Porn
Revenge porn laws prohibit posting the identifiable images of a person engaging in sexual activity without the person’s consent with the intent to cause emotional distress. Revenge porn crimes have the same effect as posting harmful information on the internet.
Posting such images could lead to the harassment of the victim by other people. Most people usually commit revenge, porn, and posting harmful information on the internet. They violate these laws by posting an image of the victim engaging in sexual activity, then including additional and identifying information about the person, including the name, address, contact information, and employment details.
Revenge porn increases the risk that the victim will be harassed both online and in person. For instance, the victim could start receiving unsolicited messages, calls, and visits from people who read her information online.
The offense is a misdemeanor punishable by up to a year in county jail and a fine not exceeding $1,000.
Find a Los Angeles Cyber Crimes Defense Attorney Near Me
The internet has made domestic violence crimes take a new form. You could be charged for posting harmful information against a former or current romantic partner, or another person without his or her consent. If the court can prove that you intended to cause another person to harm, annoy, or injure the victim, you could face criminal penalties, including fines and jail time.
At The LA Criminal Defense Law Firm, we defend clients facing charges of domestic violence, including computer-related domestic violence. We understand the laws and defenses we can use to defend you. Reach us at 310-935-1675 for a consultation.