Miami Defense Lawyers Explain Fighting Cyberstalking Charges
As defense lawyers in Miami, we’ve seen our fair share of cyberstalking cases. With the internet and social media, it’s unfortunately become easier for people to engage in harassing or threatening behavior online. But not all online interactions that make someone uncomfortable necessarily rise to the level of criminal cyberstalking. There are often solid defenses that an experienced attorney can raise if you find yourself charged with this crime.
What Constitutes Cyberstalking in Florida?
Florida’s cyberstalking law is broader than in some other states. It makes it illegal to engage in a course of conduct using electronic means that harass or threaten someone. A “course of conduct” means two or more acts that include:
- Communicating words, images, or language directed at or about a specific person causing substantial emotional distress
- Making any statement, whether true or false, intending to cause substantial emotional distress
- Knowingly posting or sharing sexual images of someone identifiable from the image
If that course of conduct actually causes substantial emotional distress, and serves no legitimate purpose, it can be charged as cyberstalking under Florida statute 784.048. This is a first degree misdemeanor, but penalties increase for repeat violations or if done in violation of an injunction or court order.
Where People Go Wrong with Online Speech
It’s not necessarily illegal to say mean or false things about someone online, as long as it doesn’t rise to credible threats. The trouble usually starts when people become overly persistent. For example:
- Posting criticism repeatedly on someone’s social media page after being blocked or asked to stop
- Signing the person up for unwanted services to harass them
- Encouraging others online to harass the victim
- Posting the person’s private information like their address
While each individual act might not be criminal on its own, the persistent pattern of behavior is what constitutes cyberstalking. People don’t realize how their posts can be interpreted over time until it’s too late. Any type of repeated online activity intended to harass or threaten may fall under the cyberstalking law.
Defenses to Cyberstalking Charges
These types of cases often come down to personal judgment calls, so there are viable defenses we can raise as criminal defense attorneys. Some of the most common ways we fight cyberstalking charges include:
No “Course of Conduct”
If the online speech only occurred one time, or only on a single platform after which the person stopped, it likely doesn’t meet the legal definition of a “course of conduct.” One rant does not cyberstalking make. We would argue there was no pattern of harassment under the law.
Speech Was Protected
The First Amendment still protects free speech, even online speech. While threats aren’t protected, expressing opinions generally is. We look at the specific language used to see if it contains protected opinion or hyperbole versus real threats or harassment. Vague statements like “I wish someone would teach this person a lesson” may not convey a real threat. Clear and direct threats like “I will come to your house and hurt you” are less likely to be protected speech.
No Actual Distress Shown
If the victim does not show or describe any real mental distress or impact on their daily functioning, then the repeated online activity cannot be said to have caused substantial emotional distress as required by Florida law. We would argue the high bar for distress under the statute was not met. This is easier to show if the victim sought counseling or therapy, had to take time off work, demonstrated fear, or made changes to daily habits to avoid the contact.
Speech Wasn’t Directed at the Victim
The law requires the repeated online activity to be directed at or about a specific person. So speech about a group or organization, that does not single out the victim, does not qualify. This also helps exclude general political rants or statements of opinion not pointed directly at anyone.
Speech Had a Legitimate Purpose
If the speech served a legitimate purpose, like warning others about a bad business or abusive person, it does not constitute cyberstalking under Florida law. Legitimate public criticism is protected. However, the manner and frequency of the posts still matter. A calm factual review is different from repeated inflammatory rants.
Lack of Criminal Intent
In order to be guilty, the stalking must be done maliciously with intent to harass or threaten. We would look at whether the speech was provoked or if the person had any legitimate purpose behind their actions. We also examine whether the person realized their conduct would cause distress or recklessly disregarded that likelihood. Anger or poor judgment alone does not equate to criminal intent.
What About Social Media?
Social platforms like Facebook, Twitter, and Instagram can complicate cyberstalking cases. Their community standards prohibit harassment, and people can get banned for it. But violating a website’s terms of service is not automatically a crime. Still, harassing posts that get deleted can provide evidence that a platform warned the person or tried to curb their behavior. That helps show the required intent or knowledge under the law. However, we can argue the website is essentially a private forum that can delete whatever they deem objectionable, so violations alone should not equate to criminal charges.
Getting Charges Dismissed or Reduced
In many cyberstalking cases, we can negotiate with the prosecutor to get charges dropped or reduced. They may agree to dismiss the case if the defendant agrees to stop the online conduct and leave the victim alone. This is often the best outcome to avoid a criminal record. If charges cannot be dismissed, we may be able to plea bargain to an offense like misdemeanor harassment with no jail time and eventually get the case sealed or expunged. Every case is different, but an experienced Miami criminal defense lawyer can often negotiate a fair outcome.
Don’t Wait to Get Legal Help
If you are under investigation or charged with cyberstalking or cyberharassment in Florida, get experienced legal counsel on your side immediately. An attorney can intervene early in the process to try to resolve or dismiss the case before charges are even filed. Don’t take chances with your future and wait to see what happens. The law offices of My Firm defend clients against cyberstalking and cyberharassment charges throughout Miami. Call us today for a free consultation at (305) 555-1234.
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