With the increase in internet usage, online crime has become a major concern. People are using the internet to commit crimes such as stalking, cyber harassment, making criminal threats, or posting harmful information, which can have serious consequences for both the perpetrator and their victims. It is illegal to attempt to hurt your partner, ex-lover, or spouse by posting offensive information or photographs online.
If you or a loved one is facing charges for such a crime, you should consult with a professional criminal defense lawyer. We at the California Criminal Lawyer Group in Santa Ana will offer you sound legal advice and help you develop a solid defense to fight the allegations against you.
Overview of Posting Harmful Information on the Internet Under California Law
In this modern era, where everyone from children to seniors often uses the internet, various individuals have inadvertently become involved in various cyber crimes. The state of California has passed legislation to combat cyber crimes, such as the dissemination of potentially damaging content online. According to the provisions of California PEN 653.2, it is a serious crime to post or share information online to hurt another individual.
Before you can be found guilty of this crime, the prosecution needs to prove the following elements beyond any reasonable doubt:
The Defendant Used Electronic Gadgets to Avail, Email, or Distribute Harassing Information or Content
Before the prosecution team can demonstrate that you posted harmful content, they need to show that you had access to an electronic gadget, such as the following:
- Mobile phone
- Telephone
- Internet sites
- Computers
- Video recorder
- Fax machine
Information transmitted through these channels ought to be used maliciously, to harass the intended recipients. For this charge, harassment is defined as any intentional act directed at another person. It is essential to bear in mind that the transmitted information should be cruel, dreadful, and irritating without a valid reason.
Online harassment can also occur in the following circumstances:
- Sharing or distributing details about another individual through the internet
- The information disseminated was intended to aggravate or harass the alleged victim
The Alleged Victim's Lack of Consent
Consent is defined in this case as a person's agreement to participate in a specific activity or task. Most personal details are normally handled confidentially. However, some individuals could agree to you putting it online. When someone refuses to take part in something and you nevertheless go ahead with it, you can be charged for infringing on your legal rights. Before you're found guilty under California PC 653.2, it should be obvious that the victim failed to provide his/her consent to the activities.
You Intended To Harass, Hurt, or Physically Contact Another Individual By Sharing Their Details Online
Most people often share unpleasant details about another individual to scare them. Therefore, the prosecution needs to establish before a conviction that your motives were limited to instilling fear of unwelcome harassment in the accused victim. If the content you released was not intended to scare the victim, it wouldn't be considered damaging, and the prosecutor's efforts will be dropped.
You Succeeded In Your Goal of Instilling Fear and Causing Harm In the Alleged Victim
For the prosecution to effectively indict you under California PC 653.2, the intended motive of the content you shared online should be fulfilled. This could be true if the victim you targeted knew you were trying to scare them or hurt them. A targeted individual would recognize that they were a target by letting the authorities know about the content you shared on the internet.
In most situations, it is challenging for the prosecution to prove these elements of the crime. Therefore, your defense lawyer could discover information that casts doubt on the prosecutor's effort to establish your conviction.
Relationship Between California PC 653.2 and Domestic Violence PC 1203
Harassing another individual can take either an indirect or direct form. For example, threatening your domestic partner constitutes an act of domestic violence. Harassment being a form of inflicting harm is reasonable to link it to the dissemination of harmful material online to domestic violence.
Domestic violence, as defined by California PC 1203, doesn't just involve physical abuse or harm. Domestic violence laws are violated as long as the defendant's actions were aimed at causing harm to the alleged victim.
Posting harmful content online to harm or threaten domestic partners is termed domestic violence, even though the actions are tried under a separate statute. A domestic partner can be:
- A current or former spouse
- Someone with whom you've got a child
- A domestic partner
- A current or former cohabitant
- Someone you were dating
- Former or current fiancée
Consequences for Posting Harmful Content On the Internet
Sharing harmful material to harm another individual is considered a misdemeanor. The following punishments apply if you are found guilty of this crime:
- Serving no more than one year behind bars
- A cash fine of no more than $1,000
- Serving a misdemeanor probation
Indirect internet harassment is punishable by summary probation for a maximum of 3 years under California PC 653.2. Probation is normally a less severe option than incarceration. In most cases, a criminal defense lawyer will plead and persuade the court to offer the defendant a probation sentence instead of jail time.
If you receive a probation sentence instead of a term of imprisonment, there are several requirements you should adhere to or the court would reinstate the original sentence.
These conditions include the following:
- You'll have to cover the cost of the court's fees and fines
- Mandatory enrollment in a group or individual therapy session
- Participate in community service
- A requirement to appear in court on scheduled days
The victim could be issued a protective order by the court. This guarantees that you avoid contact with them and refrain from verbal or electronic conversation.
Legal Defenses Against California PC 653.2
Since California PC 653.2 is deemed as an act that constitutes domestic violence, a conviction would result in severe legal consequences. However, if you're facing criminal charges because the content you shared on the internet was purportedly intended to hurt your partner, a conviction wouldn't be certain.
With the assistance of an experienced criminal defense attorney, you could be able to use appropriate legal defenses to dismiss or reduce your charges. The following are a few possible defenses you can use in this case:
No Intent To Harm Another Person
The prosecution team needs to demonstrate that you intended to cause harm to an intimate partner for you to be found guilty of putting harmful content on the internet. You can claim that you didn't intend to cause harm to the purported victim as a defense argument to your case. However, if you use this argument, you should admit that you shared some material but did not mean to instill fear or harm.
If your content was misunderstood, this would be effective. Once you have proven this to the court, the prosecution will have a hard time establishing your guilt and won't have any justification for filing charges against you.
Innocence
Arguing you that weren't associated with the offense is a legitimate argument that you can use in practically any kind of prosecution. This entails a complete denial of participation in the illegal activity of which you've been accused. If you're charged under PC 653.2, you can dispute posting or sharing harmful content about another individual.
Somebody might post offensive content and make an effort to hold you responsible for their conduct. You can dispute your involvement in the alleged crimes by using the assistance of an experienced criminal defense lawyer. If you are successful in this defense, your charges will be dismissed.
Withdrawal
You have to acknowledge that you shared damaging information online about the accused person if you are interested in utilizing withdrawal as a legal defense strategy against posting material that could endanger or harm others. However, you should show that you removed the content immediately after you became aware that it was causing harm or fear. If you shared the material during an angry episode, you may not notice the significance of the post until the anger fades away and you review it.
Insufficient Evidence
Before you're found guilty of uploading damaging content online, the prosecution has the burden of proving several elements. Sometimes the interrogating officer has evidence against you, but it's insufficient to find you guilty. This usually arises when there's a series of facts, but there's a reasonable question about it.
Misconduct by Police
There are several different types of police misconduct. This covers illegal searches and not reading you the Miranda rights during the arrest. The police officer who makes the arrest should notify you of your legal rights as mandated by the constitution. If the police do not do this, the evidence acquired against you would be considered inadmissible in court. Before conducting a search and seizure operation, the authorities involved should get a warrant before searching your property.
The court can dismiss all of the illegally obtained evidence. It's important to keep in mind that even if the law enforcement agencies infringed on your rights, the case could still not be dismissed. The prosecutor could ask for a reduction in your punishments. If you've been charged with sharing harmful information online, you could be able to negotiate a reduction in your penalties by citing police wrongdoing.
Coercion
Being forced to engage in an activity that you otherwise wouldn't have undertaken voluntarily is referred to as coercion. If an individual with whom you had conflicts compelled you to share something detrimental, you could be able to claim coercion as a justification in your defense. An individual could use blackmail to force you to infringe California PC 653.2. If you intend to rely on this argument in your case, you should be able to demonstrate the particular factor that led to your participation in the offense in question. Also, getting advice from an experienced criminal defense lawyer could be very helpful when you make your argument.
Duress
This is a serious type of coercion that involves an individual in power, such as law enforcement authorities. If you and your partner have a strained relationship, an individual with a position of authority could compel you to share material that could be damaging to them. These people frequently threaten your loved ones to coerce you into taking part in criminal activity.
Involuntary Intoxication
When using drugs or drinking alcohol, people can tend to act without taking into account the implications of their choices. However, unless the impairment was unintentional, it can't be utilized as a defense in court. Assuming you were under the influence of drugs when you made a potentially damaging online post.
This could serve as your defense. The court could rule that your actions were not intentional if they determine that you were acting while under the influence of alcohol. In this scenario, you will need to provide evidence that the impairment happened against your consent.
Offenses Related to Posting Harmful Information on the internet
Certain crimes in California are linked to PC 653.2. Several of these offenses will be prosecuted in addition to or in place of posting inappropriate content online. The following are some offenses linked to PC 653.2:
Annoying phone Calls Emails or Text Messages
Under California law, it is a crime to send text messages, calls, or emails with the intention of causing harm to someone else. If you've been accused of harassing someone by calling or texting, the prosecution must prove the following things before you are found guilty:
- You used an electronic gadget to call another person or make contact. It's crucial to keep in mind that even if the intended victim does not answer your call, you could still be found guilty
- You made threats or used vulgar language. Electronic contact is regarded as annoying when it includes inappropriate sexual content or threats
- You meant to bother or harass. If the prosecution cannot show that you intended to annoy someone, you cannot be found guilty of making or sending annoying calls or text messages.
Under PC 653 of the California Penal Code, it is illegal to make harassing phone calls or leave annoying messages. You will bear the following penalties if you are found guilty of this crime:
- A six-month jail term
- A fine of no more than $1,000
You could receive an informal probationary sentence if you are convicted under PC 653m. If this occurs, you may be required to attend counseling as a term of your probationary term.
Cyber Stalking
Cyberstalking is defined by California Criminal Code 646.9 as threatening or harassing another person to the point where they become concerned for their safety. The following are the factors required to establish a violation of PC 646.9:
- The prosecution must demonstrate that you stalked or bothered another individual with malice and intent. Acting maliciously in these cases refers to purposefully doing something wrong with an unlawful motive
- You presented a legitimate threat. A threat is considered credible if it makes the target feel a reasonable concern for their welfare and if it has the potential to be followed through
- You meant to make the victim and/or their loved ones feel genuinely threatened. The court will examine all of the facts and circumstances to determine if you had the intent to induce reasonable fear
You cannot be found guilty of cyberstalking if you participated in a constitutionally authorized activity that made another person feel threatened. If you are found guilty of cyberstalking, you could be subject to both civil and criminal fines. If you are found guilty of this misdemeanor offense, you could face the following penalties:
- A 12-month jail term
- No more than $1,000 in fines
- Informal probation
If found guilty of cyberstalking as a felony, you could face the following consequences:
- Formal probation
- A sentence of five years in prison
- No more than $1,000 in fines
You will be subject to felony charges if the conduct was done in violation of a protective order. The accused victim could also pursue damages associated with the stalking.
Yet, the burden of proof is with the victim to show that you harassed them repeatedly. It should also be obvious that your actions made them worry about their safety. The victim could be entitled to punitive damages as part of the compensation you are required to pay. If you are being prosecuted for cyberstalking, it is in your best interest to consult with an attorney.
Making Criminal Threats
Threats to hurt or murder another person are illegal. The prosecution must prove the following things before a verdict is rendered under California PC 422:
- You made a threat to seriously harm or murder someone else. You can be accused of this crime without making a direct threat. To make a credible threat of serious physical injury or death is grounds for an arrest and possible conviction
- You wanted the intended victim to interpret your message as a threat. The threat should be delivered orally, in writing, or electronically to qualify
- Your threats indicated the potential for execution right away. The prosecution must show that the threats were genuine and you were capable of carrying them out for you to be found guilty of making the threats
- The victim had a legitimate concern for their own and their family's safety. PC 422 stipulates that you must have put the person in a reasonable state of fear to be found guilty.
According to the circumstances surrounding the crime as well as your criminal background, California PC 422 can either be a felony or a misdemeanor. If found guilty of a misdemeanor, the maximum penalty is $1,000 in penalties and one year in jail.
If found guilty of this felony, you could spend up to 3 years in prison and pay a maximum fine of $10,000. Making threats against several individuals or on various occasions will result in separate punishments for each victim or incident.
Sending Obscene Content to a Child
It is against the law in California under Penal Code 288.2 to transmit sexually explicit content to minors. The following factors must be present to establish your culpability for this crime:
- You willfully sent harmful material to a child under the age of eighteen or exposed it to them. The content is deemed harmful if it offensively depicts sexual behavior. If the material is educational, it is not going to be deemed harmful
- You had grounds to believe that the receiver of the item was a child when you transmitted it
- You did this with the explicit intent to sexually arouse the child. If the prosecution cannot establish this, you cannot be prosecuted under PC 288.2
- You had the intention of engaging in sexual behavior with your victim when you perpetrated the act
Sending obscene content to a minor is a wobbler violation in California. If prosecuted as a felony offense, it carries a maximum three-year prison term as punishment.
Additionally, you can be required to incur fines of up to $10,000. Sex offenders must register as such for the rest of their lives after receiving a conviction for a felony for transmitting pornographic content to a minor. PC 288.2 charged as a misdemeanor carries a $1,000 fine along with a one-year jail term.
Additional Internet-Related Offenses in California
Other than harassment and cyberstalking, several other Internet-related crimes can be prosecuted in the state. These offenses can be connected to or related to the distribution of harmful material online. These are listed below.
Hacking or Unauthorized Access
Unauthorized access is the act of entering a computer, phone, server, or another electrical gadget without the consent of the owner. Unauthorized access or hacking is a complex procedure. If found guilty, the maximum sentence for such offenses is 20 years behind bars, and the maximum fine is $15,000.
Wi-Fi or Cell Phone Jamming
Jamming Wi-Fi or cell phones is another potential internet violation. This offense is related to the distribution of harmful material online and could result in extra penalties.
Find a Santa Ana Criminal Defense Attorney Near Me
As harmless as it may seem, sharing content online can result in criminal prosecution and large fines. This can happen, particularly if the material you uploaded was intended to cause harm to a romantic partner, spouse, or family member. Thankfully, being charged with a crime does not always lead to a conviction. You have legal options to counter the accusations leveled against you.
If you've been charged with violating Penal Code 653.2, one of the best things you can do is consult with the California Criminal Lawyer Group in Santa Ana. Our team of diligent lawyers will fight hard to have the charges against you reduced or dismissed. Call us today at 714-844-4151.
