In the last 20 years, the explosive growth of the internet caused an explosion of Internet Harassment. Whether it is internet harassment of a person or a business, the growth of cyber-bullying, revenge porn, or just plain false information online; internet harassment has grown exponentially. Changes in evolving technology have been far ahead of the law and its protections for people. We wanted to explore a victim’s legal options through this blog and point out legal shortcomings.
This area of the law has seen such explosive growth that our blog entry will be broken into three sections:
Today, in the final post in this series, we’ll discuss civil remedies (where you as the victim sues the other person). Before analyzing anything else, the threshold question is this: Are you being physically threatened through telephone, text, email, or social media? If the answer is YES, you should immediately call the police. If the answer is NO, your situation needs to be examined more thoroughly.
Second, if you are having profane material being spread electronically without your consent, you should also immediately call the police. However, if the person is spreading lies, falsehoods, or other material about you in cyberspace you should contact an attorney (or after you call the police in the first two situations). In any instance, an attorney can help you through the process as there are several possible legal avenues to remedy your situation.
For purposes of this article, I will characterize all things we’re discussing as “Internet Harassment” and use it encompassing its broadest sense. Understand that I am using that phrase to include every possible scenario, including revenge porn, defamation, abuse, harassment, and negative feedback. Anything that is posted online by one person about another (person or business) that is reasonably perceived as inappropriate.
Internet Harassment – What Civil Remedies do you have?
Can I sue to stop internet harassment? Like all things in the law, the answer is “maybe.” Criminal charges typically require what is called specific intent and it will require more than bad language or opinion posted about another person in a single instance. And someone’s right to free expression is at play if the police become involved in the investigation or prosecution of the matter. But there is a broad variety of civil remedies available to a private party. Unfortunately, not all civil remedies fit every situation.
Below are some examples of potential civil remedies that a victim of Internet Harassment may have.
Intentional Infliction of Emotional Stress:
- The conduct must be intentional or reckless;
- The conduct must be extreme or outrageous
- There must be a causal connection between the wrongful conduct and the emotional distress; [and]
- The emotional distress must be severe.
Explanation of elements:
(1) “Intentional or Reckless” occurs when a defendant “desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct; or where the defendant acts recklessly in deliberate disregard of a high degree of probability that emotional distress will follow.” Silvera v. Home Depot U.S.A., Inc., 189 F. Supp. 2d 304 (D. Md. 2002).
(2) “Extreme and outrageous” conduct is conduct that is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Restatement (Second) of Torts 46 cmt.d (1965)).
*Note, Claims of intentional infliction of emotional distress are “’rarely viable in a case brought under Maryland law.’” Takacs v. Fiore, 473 F. Supp. 2d 647, 652 (D. Md. 2007).
(4) Distress is severe when it disrupts daily functioning and is beyond what a “reasonable man could be expected to endure.” Takacs v. Fiore, 473 F. Supp. 2d 647, 652 (D. Md. 2007).
Trespass to land:
- Entry upon land;
- In an unlawful manner;
- In the possession of another; [and]
- Without consent.
“Every unauthorized entry upon land of another is a trespass, and whether the owner suffers substantial injury or not, [the owner] at least sustains a legal injury, which entitles [the owner] to a verdict for some damages; though they may, under some circumstances, be so small as to be merely nominal.” Tyler v. Cedar Island Club, Inc., 143 Md. 214, 219 (1923) (quoting Balt. & Ohio R.R. v. Boyd, 67 Md. 32, 40 (1887)).
Trespass is not limited to “land.” It also includes “possessory interests.” See Royal Investment Group, LLC v. Wang, 183 Md. App. 406 (2008). Could this be applied to the internet? Maybe but courts in Maryland have not yet decided.
Plaintiffs do not need to show that the intrusion was committed with tortious intent, but must establish that the defendant consciously intended to do the “act that constitutes entry upon [the plaintiff’s] real or personal property.” Balt. Gas & Elec. Co. v. Flippo, 112 Md. App. 75, 85 (1996).
- Unreasonable or intentional conduct;
- Which causes substantial and unreasonable injury or interference;
- With another’s use and enjoyment of his or her real property.
“A private nuisance is a non trespassory invasion of another’s interest in the private use and enjoyment of land.” Rosenblatt v. Exxon Co., 335 Md. 58 (1994), quoting Restatement (Second) of Torts 821D (1965).
Trespass is a remedy for interference with one’s possessory interest, whereas nuisance is a remedy for interference with one’s enjoyment and use of property.” Whitehall Constr. Co. v. Wash. Suburban Sanitary Comm‘n, 165 F. Supp. 730 (D. Md. 1958).
The alleged injury to use and enjoyment of real property must be of such a nature as to diminish materially the value of the property and to seriously interfere with the ordinary comfort and enjoyment of the property.” Carr’s Beach Amusement Co v. Annapolis Roads Prop. Owners’ Ass’n, 222 Md. 392 (1960).
Examples of Nuisance:
- radio which projects noise into plaintiff’s home. Gorman v. Sabo, 210 Md. 155 (1956).
- Leakage of gasoline from storage tanks onto nearby property of landowners. Exxon Corp. v. Yarema, 69 Md. App. 124
- Dredge materials collapsing into a creek, depriving land owner of access to property by their boat. Toy v. Atl. Gulf & Pac.Co., 176 Md. 197 (1939).
- Operation of loudspeakers at excessive levels in an amusement park. Carr’s Beach Amusement Co. v. Annapolis Roads Prop. Owners’ Ass’n, 222 Md. 392 (1960).
- Could the invasion be of one’s internet possessory interest like a facebook page? Courts have not yet decided.
Defamation: (Private Individuals)
- That the defendant made a defamatory statement to a third person,
- That the statement was false
- That the defendant was legally at fault in making the statement, and
- That the plaintiff thereby suffered harm. A defamatory statement is one which tends to expose a person to public scorn, hatred, contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or associating with, that person..
Explanation of Elements:
(2) For the purposes of defamation, “[a] false statement is one that is not substantially correct.” Batson v. Shiflett, 325 Md. 684, 726 (1992). The plaintiff has the burden to prove falsity so, if the plaintiff cannot prove the falsity of a particular statement, the statement will not support an action for defamation. See Bagwell v. Peninsula Reg’l Med. Ctr., 106 Md. App. 470 (1995).
Defenses to Defamation:
Provides complete immunity and applies principally to (1) judicial proceedings; (2) legislative proceedings; (3) in some cases, an executive publications; (4) publications consented to; (5) publications between spouses; and (6) publications required by law. Gohari v. Darvish, 363 Md. 42 (2001)
A qualified privilege exists for reporters. Chesapeake Publ’g Corp. v. Williams, 339 Md. 285, 296 (1995) (citing Rosenberg v. Helinski, 328 Md. 664 (1992) (“In Maryland, there exists a qualified privilege to report on legal proceedings, even if the story contains defamatory materials, as long as the account is fair and substantially accurate.”).
Also applies to communications between current or former employers or prospective employers. Shapiro v. Massengill, 105 Md. App. 743 (1995) (citing McDermott v. Hughley, 317 Md. 12 (1989)).
Consent is an absolute defense to defamation. Bagwell v. Peninsula Reg’l Med. Ctr., 106 Md. App. 470, 665 (1995), cert. denied, 341 Md. 172 (1996) (citing McDermott v. Hughley, 317 Md. 12, 561 A.2d 1038 (1989)).
*Opinion is not a defense, but it may negate the element of provable falsity. See Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).
How do you prove damages in the age of the Internet? What is your reputation worth? Damages experts can easily calculate lost income for a business, damage to reputation, and lost earning power and prestige in the community. However, is that judgment or verdict collectible? That’s always the first question any lawyer will ask when deciding to take on a matter for contingency? Does the Defendant have any assets? Does the Defendant have anything to lose? Often, Defendants who harass and defame another on the internet have little to no collectible assets, which would leave you as a plaintiff with an empty judgment.
Conclusion Part 3 – Internet Harassment
Last week, look for Part 2, Peace Orders and Protective Orders in the age of the internet. Also check out Part 1, crimes. If you feel that you are the victim of Internet harassment, document as much as possible. Contact the police immediately if you feel threatened or unsafe in any way. Remember, you can always contact your ENLawyers for help too!