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 has grown exponentially. Changes in evolving technology have been far ahead of the law and its protections for people. We wanted to explore 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:
- Potential criminal conduct
- Peace Order/Protective Order conduct
- Civil remedies
Today, we’ll tackle criminal conduct first. Of course, every situation is different and nothing in this article is meant to substitute for good legal counsel. 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 – Can you file Criminal Charges?
Of course, 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. Some examples of possible crimes that a person committing internet harassment may commit are listed here and broken down further below:
- CRIMINAL LAW Code Ann. § 3-803 Harassment
- CRIMINAL LAW Code Ann. § 3-802 Stalking
- CRIMINAL LAW Code Ann. § 3-804 Misuse of telephone equipment
- CRIMINAL LAW Code Ann. § 3-805 Misuse of electronic communication or interactive computer service
- CRIMINAL LAW Code Ann. § 3-809 Revenge porn.
Harassment, under Maryland Law, is when a person follows another in or about a public place or maliciously engages in a course of conduct that alarms or seriously annoys the other with the intent to harass, alarm or annoy; after receiving a reasonable warning or request to stop by the other person and without any legal purpose. It also does not apply to a peaceful activity designed to express a political view or give information to others. Harassment carries 90 days in jail for a fist offense and 180 days for a subsequent offense.
Applying that situation to Internet Harassment, usually the first step is to ensure a clear and unequivocal warning or request to stop, either via text message, social media message, etc. Subsequent contact between the victim and the harasser may constitute a waiver, so beware of engaging your harasser in subsequent internet communication. We simply recommend to our clients to record and document the contacts and screenshot or download the communications for evidentiary purposes and use at a later criminal and/or civil hearing. And obviously to contact the police to document the situation. See e.g. Pall v. State 117 Md. App. 242 (1997).
Example of Internet Harassment
One obvious loophole with the internet is when someone is posting on their OWN social media page about another. For example, a boyfriend and girlfriend break up. The boyfriend is upset about the situation. Boyfriend “defriends” girlfriend and proceeds to post derogatory things on his OWN social media page. The postings annoy the ex-girlfriend and she warns the ex-boyfriend. The ex-boyfriend does not stop and continues to post his rantings (not violent but derogatory and probably offensive) on his OWN page.
This common scenario may not be covered under the crime of harassment. There is no case law on this issue in Maryland and judges (who are often not social media users and much older than the average defendant) have a difficult time grappling with the fact that posting material on one’s own page can harass through mutual friends or the general internet. Of course, if the content of the messaging is violent or defamatory a judge may view the material differently.
Stalking, in Maryland, is a malicious course of conduct that includes approaching or pursuing another person where the defendant intends to place or knows or reasonably should know that the conduct would place the victim in reasonable fear of serious bodily harm, assault, rape, imprisonment, or death or the conduct would cause serious emotional distress to the victim. Or to a third person will suffer the same.
Stalking is much more specific than Harassment, especially when it comes to the internet. It involves a level of violence which is essentially a step up from harassment. A classic example would be following or leaving threatening letters or notes. It would likely not cover our example listed above about the ex-boyfriend posting on his own social media page. Stalking carries a maximum penalty of 5 years in jail.
Misuse of telephone equipment
Maryland Law says that a person may not use telephone facilities or equipment to make: an anonymous call that is reasonably expected to annoy, abuse, torment, harass, or embarrass another; repeated calls with the intent to annoy, abuse, torment, harass, or embarrass another; or comment, request, suggestion, or proposal that is obscene, lewd, lascivious, filthy, or indecent.
What exactly does telephone facilities or equipment mean? Does it encompass the internet and internet-capable telephones? These questions remain unanswered by Maryland Law and it is unclear if our ex-boyfriend example of internet harassment would be considered a crime. The crime carries a maximum penalty of 3 years in jail.
Misuse of electronic communication or interactive computer service.
This statute is a combination of misuse of telephone equipment, stalking, and harassment over electronic communication or social media. This is generally the most appropriate crime for any type of internet harassment. Be mindful that the conduct must either be threatening in nature or have a warning from the victim. Assuming the communication harassed, alarmed, or annoyed the victim, our ex-boyfriend example fits the misuse of electronic communication. It carries a maximum penalty of 1 year in jail.
On October 1, 2018, a new revenge porn law goes into effect, supplanting the current law. It is long, complicated, and could merit its own blog entry. Suffice it to say that extortion through revenge porn and the act of distributing a visual representation of another identifiable person while engaging in any sort of sexual activity without the consent of the victim would almost invariably be a crime. This crime would clearly be excluded from our ex-boyfriend example of internet harassment. It is going to be powerful for prosecutors, with a maximum penalty of 2 years for this type of conduct.
Some other potential crimes
It’s possible that Trespassing on private property or Disorderly conduct could be criminalized by certain types of Internet Harassment, such as cybersquatting or spamming. However, both of those crimes require “Property” and “Public spaces” as elements and it is unclear if a court would recognize a webpage or a web-space as a public space for property and criminal purposes.
Conclusion Part 1 – Internet Harassment
Next week, look for Part 2, Peace Orders and Protective Orders in the age of the internet. 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!