When Cyberbullying Turns Out To Be A Crime?

This page explains when online conduct crosses into a crime in California, which statutes prosecutors use, the penalties, how school discipline differs from a criminal case, and what to do if you or your child is accused. Many of the same risks apply to ordinary posts, as explained in our guide to the legal consequences of social media statements. Each statute below has its own elements, and a post that is rude or hurtful is not a crime unless it meets them (Penal Code 646.9(f) excludes “constitutionally protected activity”).

Posting personal information to incite harassment: Penal Code 653.2

This law targets “doxing” used to set others on a victim. It applies to a person who, “with intent to place another person in reasonable fear for his or her safety,” and without consent, electronically distributes or posts “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,” for the purpose of imminently causing “unwanted physical contact, injury, or harassment, by a third party” (Penal Code 653.2(a)). It is 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.”

“Harassment” here 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” (§ 653.2(c)(1)). Victims can also seek a civil harassment restraining order under Code of Civil Procedure 527.6.

Threatening or repeated messages: Penal Code 653m

It is a misdemeanor, “with intent to annoy,” to contact someone “by means of an electronic communication device” and address “any obscene language” or “any threat to inflict injury to the person or property” of the person or a family member (Penal Code 653m(a)). Separately, making “repeated contact by means of an electronic communication device” with intent to annoy or harass is a misdemeanor “whether or not conversation ensues” (§ 653m(b)). Contacts “made in good faith” are excluded. An online offense “may be deemed to have been committed when and where the electronic communication or communications were originally sent or first viewed by the recipient” (§ 653m(c)), which affects where a case can be filed.

Online impersonation: Penal Code 528.5

Creating a fake account in someone’s name can be a crime. The statute covers anyone who “knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person” (Penal Code 528.5(a)). An impersonation is credible “if another person would reasonably believe, or did reasonably believe, that the defendant was or is the person who was impersonated” (§ 528.5(b)), and “electronic means” includes “opening an e-mail account or an account or profile on a social networking Internet Web site in another person’s name” (§ 528.5(c)). The penalty is a fine up to $1,000, up to one year in county jail, or both (§ 528.5(d)). Victims can also sue (§ 528.5(e)).

Cyberstalking: Penal Code 646.9

Stalking requires that a person “willfully and maliciously harasses another person” and “makes a credible threat with the intent to place that person in reasonable fear for their safety, or the safety of their immediate family” (Penal Code 646.9(a)). A credible threat expressly includes “a threat performed through the use of an electronic communication device” (§ 646.9(g)). “Course of conduct” means “two or more acts occurring over a period of time, however short, evidencing a continuity of purpose” (§ 646.9(f)).

Stalking is a wobbler: up to one year in county jail and a $1,000 fine, or state prison (§ 646.9(a)). If a restraining order was in effect, the punishment is “imprisonment in the state prison for two, three, or four years” (§ 646.9(b)). The court must also consider a no-contact order “that may be valid for up to 10 years” (§ 646.9(k)(1)).

Criminal threats and federal charges

A threat to commit a crime that would result in death or great bodily injury, made with intent that it be taken as a threat and causing sustained fear, can be charged under Penal Code 422, which covers threats made by electronic communication device. Federal law also applies to internet messages: transmitting “any communication containing any threat to kidnap any person or any threat to injure the person of another” in interstate commerce carries up to five years (18 U.S.C. § 875(c)). Using “any interactive computer service or electronic communication service” to engage in a harassing course of conduct can be charged as federal cyberstalking (18 U.S.C. § 2261A(2)). See our federal crimes defense page.

School discipline is a separate track

For students, schools can suspend or recommend expulsion for “an act of bullying,” which includes conduct “made in writing or by means of an electronic act” that has, for example, the effect of “placing a reasonable pupil or pupils in fear of harm” (Education Code 48900(r)(1)). An “electronic act” includes a message, image or video and posts such as a “burn page,” a credible impersonation of another pupil, or a false profile (§ 48900(r)(2)(A)). The law adds that an electronic act “shall not constitute pervasive conduct solely on the basis that it has been transmitted on the internet or is currently posted on the internet” (§ 48900(r)(2)(B)). School discipline does not require a criminal charge, and a criminal case does not depend on what the school decides.

If you or your child is accused

• Do not delete posts or accounts. Destroying records to impair an official proceeding can be charged as obstruction under 18 U.S.C. § 1512(c).
• Stop contacting the other person. Further contact can add counts under Penal Code 653m(b) or violate an order under Penal Code 166.
• Do not explain yourself to police without advice. Statements can be used against you under Evidence Code 1220, and the Fifth Amendment protects the right not to answer.
• Preserve context. Whether a message was a credible threat or “constitutionally protected activity” often turns on the full exchange (§ 646.9(f)–(g)).

Talk with the office about an online harassment accusation

If you or your child has been accused of cyberbullying, harassment or online threats, contact the office to talk with Vikas Bajaj, or call (619) 525-7005.

This page is attorney advertising and general information, not legal advice. Every case turns on its own facts.

Related guides: Social media statements and the law · Open investigations · Federal crimes defense