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 the victim’s legal options through this blog and point out legal shortcomings.
If You Are Being Harassed
First, 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.
The Focus of This Article
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
- 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.
Maryland Harassment Law
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 first 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. Keep it 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.
Can you file for a Peace Order or a Protective Order for Internet Harassment?
Of course, like all things in the law, the answer is “maybe.”
You will be required to prove, through demonstrative evidence that the person has committed certain underlying acts to obtain a Peace Order.
If you are in the category of persons who are only eligible for a Protective Order, you must demonstrate some level of violence associated with the actions of the harasser. It is a major loophole in Maryland Law.
Internet Harrassment – Stalking
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.
Internet Harrassment – 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.
Internet Harrassment – Revenge Porn
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.
What Civil Remedies do you have for Internet Harassment?
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:
- “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).
- “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).
- 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.
The Bottom Line on Internet Harassment
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, if you need an internet harassment lawyer, you can always contact ENLawyers for help!