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Online Harassment Becomes Law Today – But is it about harassment?

As of September 1, 2009, it is illegal to harass someone online — well, sort of and it has always been illegal — at least, in a way. You can click here for a previous post and the full text of the new online harassment law.  The pertinent part of the bill says:

The New Law

A person commits an offense if the person “uses the name or persona of another person to create a web page on or to post one or more messages on a commercial social networking site:  (1)  without obtaining the other person’s consent; and (2)  with the intent to harm, defraud, intimidate, or threaten any person.”

It is also crime to: “send[] an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person: (1)  without obtaining the other person’s consent; (2)  with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and (3)  with the intent to harm or defraud any person.”

I still have two main questions about the law. Does the other person or persona in the first paragraph have to be real? If I simply make up a persona on a social networking site and then harass people, have I violated the law? How would I ever get a fake persona’s consent? Second, what happens if the person is not hiding behind a pseudonym, are they free to harass?

The Old Law

Texas already has a harassment law that includes the use of electronic media. Specifically, section 42.07 of the Texas Penal Code makes it illegal to: “with intent to harass, annoy, alarm, abuse, torment, or embarrass another, . . . (1) initiates communication by . . . electronic communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene; (2) threatens, by . . . electronic communication, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of his family or household, or his property; . . . or (7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.”

The law in practice

The effective date of the law coincides with two stories of note. The first is the overturning of the conviction of Lori Drew of the MySpace suicide infamy. You can read my prior post about the case here and read here and hereabout the reversal. Lori Drew created a MySpace profile of a fake teenage boy that befriended her friend’s rival. Later, the mother, through her fake teenage boy MySpace persona, told the rival that she should commit suicide. Tragically, she did. Based on whether the law criminalizes completely fake personas or only creation of profiles for actual people, it is not clear whether Texas’s new law would have made Lori Drew’s conduct illegal. Based on the reversal, existing federal law did not criminalize Ms. Drew’s actions.  

The Drew case began in Missouri where the state legislature was quick to pass their own online harassment law. Missouri is already using it. According to this story from Ars Technica, a 40-year-old woman was in an ongoing MySpace spat with her ex-husband’s new girlfriend. The girlfriend’s 17-year-old daughter joined the fray. So, ex-wife created a fake “Casual Encounters” Craig’sList ad for the 17-year-old including her photo, email and cell phone number that allegedly indicated the 17-year-old was interested in more than dinner and a movie. The 17-year-old received pornograhpic photos and other solicitations. Because the victim is under 18 and the alleged defendant is over 21, under Missouri law, the ex-wife was charged with a felony.

What if this happened in Texas? The new law would probably cover it because ex-wife used the name of another person to create a web page on or to post one or more messages on a commercial social networking site: (1) without obtaining the other person’s consent; and (2) with the intent to harm, defraud, intimidate, or threaten any person. It would also be illegal because the ex-wife sent an electronic communication that references the name and phone number of the 17-year-old without her consent, with the intent to cause a recipient of the communication to reasonably believe that the 17-year-old authorized or transmitted the communication, with the intent to harm the 17-year-old.

What if it happened before the new law was in effect? Would the plain vanilla harassment law cover it? A prosecutor would have to prove the ex-wife sent the the electronic communication “with intent to harass, annoy, alarm, abuse, torment, or embarrass another, and the communication included something that is “obscene.” Or, a prosecutor would have to show the ex-wife sent repeated electronic communications (meaning, obviously more than one) in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

So perhaps, the conduct would not be covered without the new statute. I do not have the Craig’s List add to determine whether or not it included something “obscene.” The statute defines obscene as “containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function.” If not “obscene,” the prosecutor would have show “repeated” communications. I am guessing the fake “Casual Encounters” was not the only electronic communication from the ex-wife. While probably illegal under the old law, despite some of the flaws, the new law does make it easier.

You can read the Volokh Conspiracy’s take on these issues here.