It can happen to the best of us. One day you are sitting at your computer, minding your own business and then for reasons that perhaps no one can comprehend, someone starts to malign, threaten and harrass you and then sets out on a course designed to destroy your otherwise good name. What can you do?
Most states have laws against Cyber Bullying but recently I came to learn that those are almost always exclusive to school aged children and afford no protection to the adults of this land. I also found that although the person or people attempting to ruin your name and life may hate you, unless you are gay or lesbian, or of an ethnicity or religious persuassion that is specifically protected, it is almost certain that it will not be classified as a "hate crime". So what can one do, REALLY?
This is the part where it is again important for me to say that I am NOT an attorney. I am not licensed to nor am I attempting to practice law. In the eyes of the law, only a license attorney can give you "legal advice". Please do not attempt to construe anything in this blog as legal advice. It is simply information that I gathered an am willing to share.
And now, back to our regularly scheduled broadcast:
In California, the law is pretty clear about several things.
1) Civil Harrassment has the exact same definition, almost exactly word for word in the laws that afford the injured party the right to seek the protection of a Temporary Restraining Order and later a Permanent Restraining Order. The applicable verbage can be found at:
California Code of Civil Procedure:
527.6. (a) A person who has suffered
harassment as defined in
subdivision (b) may seek a temporary restraining order and an
injunction prohibiting
harassment as provided in this section.
(b) For the purposes of this section, "
harassment" is unlawful
violence, a credible threat of violence, or a knowing and willful
course of conduct directed at a specific person that seriously
alarms, annoys, or harasses the person, and that serves no legitimate
purpose. The course of conduct must be such as would cause a
reasonable person to suffer substantial emotional distress, and must
actually cause substantial emotional distress to the plaintiff.
As used in this subdivision:
(1) "Unlawful violence" is any assault or battery, or stalking as
prohibited in Section 646.9 of the Penal Code, but shall not include
lawful acts of self-defense or defense of others.
(2) "Credible threat of violence" is a knowing and willful
statement or course of conduct that would place a reasonable person
in fear for his or her safety, or the safety of his or her immediate
family, and that serves no legitimate purpose.
(3) "Course of conduct" is a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a
continuity of purpose, including following or stalking an individual,
making harassing telephone calls to an individual, or sending
harassing correspondence to an individual by any means, including,
but not limited to, the use of public or private mails, interoffice
mail, fax, or computer e-mail. Constitutionally protected activity is
not included within the meaning of "course of conduct."
(c) Upon filing a petition for an injunction under this section,
the plaintiff may obtain a temporary restraining order in accordance
with Section 527, except to the extent this section provides a rule
that is inconsistent. A temporary restraining order may be issued
with or without notice upon an affidavit that, to the satisfaction of
the court, shows reasonable proof of
harassment of the plaintiff by
the defendant, and that great or irreparable harm would result to the
plaintiff. In the discretion of the court, and on a showing of good
cause, a temporary restraining order or injunction, issued under this
section may include other named family or household members who
reside with the plaintiff. A temporary restraining order issued under
this section shall remain in effect, at the court's discretion, for
a period not to exceed 15 days, or, if the court extends the time for
hearing under subdivision (d), not to exceed 22 days, unless
otherwise modified or terminated by the court.
As stated above, it is vital that the person being harassed
believe that the threat or offer of violence is real. If someone says; "Get out of my way or I will kill you." It is a conditional statement over which you have the power to avoid the actual violence. In that scenerio, one simply steps aside and removes that threat or offer of bodily harm. If - then statements are generally able to be defended but should actual violence occure than the applicable law changes to battery or some other offense as deemed appropriate by the authorities.
2) It is important to note that obtaining, or attempting to obtain a Civil Harrasment Restraining Order does not preclude the injured party from filing a "tort" action against the other person. In fact, getting a TRO which uses the same elements of proof as does the tort action for civil damages, could possibly be considered as prima facia evidence that the claim was indeed founded. Under Evidence Code 452, an injured party could ask the Trial Court to take "Judicial Notice" of the issuance of the Restraining Order and, in that it was in fact issued, use that to substantiate the claim of Civil Harrassment.
3) According to the California Penal Code, Harrassment is:
653.2. (a) Every person who, with intent to place another person in
reasonable fear for his or her safety, or the safety of the other
person's immediate family, by means of an electronic communication
device, and without consent of the other person, and for the purpose
of imminently causing that other person unwanted physical contact,
injury, or
harassment, by a third party, electronically distributes,
publishes, e-mails, hyperlinks, or makes available for downloading,
personal identifying information, including, but not limited to, a
digital image of another person, or an electronic message of a
harassing nature about another person, which would be likely to
incite or produce that unlawful action, is guilty of a misdemeanor
punishable by up to one year in a county jail, by a fine of not more
than one thousand dollars ($1,000), or by both that fine and
imprisonment.
(b) For purposes of this section, "electronic communication device"
includes, but is not limited to, telephones, cell phones, computers,
Internet Web pages or sites, Internet phones, hybrid
cellular/Internet/wireless devices, personal digital assistants
(PDAs), video recorders, fax machines, or pagers. "Electronic
communication" has the same meaning as the term is defined in Section
2510(12) of Title 18 of the United States
Code.
(c) For purposes of this section, the following terms apply:
(1) "Harassment" means a knowing and willful course of conduct
directed at a specific person that a reasonable person would consider
as seriously alarming, seriously annoying, seriously tormenting, or
seriously terrorizing the person and that serves no legitimate
purpose. (2) "Of a harassing nature" means of a nature that a reasonable
person would consider as seriously alarming, seriously annoying,
seriously tormenting, or seriously terrorizing of the person and that
serves no legitimate purpose.
The key is proving that the harassment "served no legitimate purpose".
4) For purposes of litigation, the venue is deemed to be where the e-mails where sent from or where they were first viewed. See Califonia Penal Code 653 (m)
653m. (a) Every person who, with intent to annoy, telephones or
makes contact by means of an electronic communication device with
another and addresses to or about the other person any obscene
language or addresses to the other person any threat to inflict
injury to the person or property of the person addressed or any
member of his or her family, is guilty of a misdemeanor. Nothing in
this subdivision shall apply to telephone calls or electronic
contacts made in good faith.
(b) Every person who, with intent to annoy or harass, makes
repeated telephone calls or makes repeated contact by means of an
electronic communication device, or makes any combination of calls or
contact, to another person is, whether or not conversation ensues
from making the telephone call or contact by means of an electronic
communication device, guilty of a misdemeanor. Nothing in this
subdivision shall apply to telephone calls or electronic contacts
made in good faith or during the ordinary course and scope of
business.
(c) Any offense committed by use of a telephone may be deemed to
have been committed when and where the telephone call or calls were
made or received.
Any offense committed by use of an electronic
communication device or medium, including the Internet, may be deemed
to have been committed when and where the electronic communication
or communications were originally sent or first viewed by the
recipient.
It is easy to see how this topic can continue but in closing, there are many other tools available to a peson who is being defamed, stalked, harassed, threatened or just bullied. There are laws that prevent someone from making your private information public and those can be addressed seperately. I have also heard that the truth is an absolute defense against slander or liable. This statement is also not completely accurate and the victim may in fact have substantial recourse under the law. Again, only an attorney who specializes in these areas can give legal advice and regarding such.
M. Allen Garrison
Director / Qualified Manager
American Fraud Institute
65 Pine Avenue, Suite 372
Long Beach, California 90802
(866) 866-2268
director@AmericanFraudInstitute.org
http://www.americanfraudinstitute.org/
CA P.I. License No. 18774
