Sisterly Online Squabbling Isn’t Criminal Stalking

September 1, 2015 · by Venkat Balasubramani · in Content Regulation

photo credit: Shutterstock/Memo Angeles – “Internet Troll Using a Computer”

This is a stalking and harassment case. The complainant’s allegations are below:

I observed a photograph of a telephone number and a caption stating, “Found on the street. No.callme # anytakers? # foragoodtime.” posted on Instagram by username “[NAME REMOVED]*,” which is a username I know to be associated with the defendant. The telephone number in the above described photograph belongs to me, and I received approximately 15 telephone calls between October 10, 2014 and October 17, 2014 from telephone numbers I did not recognize and individuals’ names and voices I was not familiar with. Callers for several of these telephone calls solicited me for sex.

On or about February 11, 2015 . . . I received 3 online RSVP email notifications via my TheKnot.com account, which is an account I have used to facilitate wedding invitations. As of February 11, 2015, I had not sent any invitations to any guests. On that date . . . I received the above described online RSVP email notifications from the following 3 names: (1)[NAME REMOVED], (2) [NAME REMOVED], and(3) [NAME REMOVED]. I know the name “[NAME REMOVED]” to be associated with the defendant’s dog and I know the name “[NAME REMOVED]” to belong to the defendant’s deceased father.

On or about February 12, 2015 . . . I received an email from the Wildlife Conservation Society, that stated that “Anna Kramer” at the email address genavieve29 @yahoo.com named a cockroach “[the complainant’s name].” The email contained a message: “A hiss just for you.” The email further contained a message from “[NAME REMOVED]” at the above described email address that stated, I’ve named this roach after you. Happy V–Day!–Your Secret Admirer.” I know the above described email address to be associated with the defendant.

Due to the defendant’s above described conduct, I am annoyed, alarmed, and fear for my safety and the safety of my family members. I do not want to be contacted by the defendant.

Defendant moved to dismiss the stalking count as insufficient. The court says stalking requires that the defendant have knowledge (actual or constructive) that defendant’s actions would cause “fear or ‘material harm.’” This is not satisfied here.

The court says that defendant’s conduct could be “idiotic,” “infantile,” “vexing,” and “annoying,” but this does not amount to an express or implicit threat, which courts have generally said is required. No matter how annoying defendant’s conduct is, it would not reasonably be viewed as threatening:

This Court sees the conduct here in much the same way. Defendant’s behavior was the Internet equivalent of having pizza delivered to an enemy, albeit over and over and over again. The Court does not doubt that the complainant experienced fear for her personal safety. But, as nettlesome the defendant’s behavior was, it would not be reasonable, absent other facts not pled, to conclude that defendant knew, either actually or constructively, that the complainant would perceive the complainant’s behavior as threatening.

The court does find that the other elements of the offense (that defendants effected the communications at issue, and engaged in a “course of conduct”) are sufficiently pled.

Hmm…an intra-family online dispute that leads to online wranglings and a legal dispute. This would not be the first time we’ve blogged about such situations. See also Olson v. Labrie and Grimes v. Saban.

While the harassment charge was not challenged, the court gets rid of the stalking charge. Many of the stalking cases involve the tension of whether fear of harm is necessary to sustain a stalking charge. Here, the answer was somewhat clear, since the statute required reasonable fear of harm. Other statutes, including ones in New York, are somewhat broader, and allow annoyance as a basis for liability, but that was not the case here.

The case illustrates how prosecutors and litigants try to fit all manner of behavior into the “stalking” bucket. Eric blogged about another recent example here, involving the same statute, where the statute was being overstretched to apply to bad behavior online.

[NB: interestingly, the defendant has an active online presence and has written for a variety of publications, including the New York Times and Washington Post.]

Case citation: People v. [LAST NAME REMOVED], 2015 WL 4731357, 2015 NY Slip Op 51161(U) (Aug. 11, 2015)

* I’ve modified this post to remove the name of the defendant and other parties.

Revenge Porn/Cyberstalking Conviction Doesn’t Violate First Amendment–US v. Osinger

When Can Defendants Defeat A Criminal Threat Prosecution By Claiming They Were Joking? Not Often

North Carolina Cyber-Bullying Statute Survives First Amendment Challenge

Court Rejects First Amendment Challenge Against Cyberharassment Charge

GA Supreme Court Fixes Overbroad Injunction Against Message Board Operator–Chan v. Ellis

Theater Employee’s Post-Termination Blogging Isn’t a Matter of “Public Concern”

Trial Court Doesn’t Unmask Parodist Twitterers

Criminal Harassment Charges Survive First Amendment Challenge, Even Without The Threat of Personal Injury

Facebook Putdown Leads to Lawsuit Between Sorority Sisters–Grimes v. Saban

Stupid Online Teen Banter Isn’t “Disorderly Conduct”–State v. Nelson