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Is It A Crime In Maryland to Harass Someone Online or on Social Media?

Maryland has recently enacted an expansive statutory scheme that criminalizes online activity and conduct in a variety of circumstances. Specifically, the law punishes the use of an electronic communication in six specific instances. Although some may contend that social media posting is benign, or innocuous conduct, the drafters of the legislation see it differently. Most of the specifically prohibited activity involves a minor victim. The charge is a serious one, carrying the potential of 3 years in prison and/or a $10,000 fine.  

 "Electronic communication"  is defined in broad terms, and includes: 

“[T]he act of transmitting any information, data, writing, image, or communication by the use of: 

  • a computer or any other electronic means 
  • e-mail 
  • an instant messaging service 
  • an internet website 
  • a social media application 
  • a network calla facsimile machine 
  • or any other Internet-based communication tool” 

     Source: Section 3-805 of the Criminal Law Article 

Under Maryland law, it is a crime to maliciously “engage in a course of conduct, through the use of electronic communication” that is alarming or seriously distressing to another, if such conduct is undertaken with the intent to harass or alarm the victim. This initial provision is one of general applicability. The wording of the statute is similar to the wording of the more general harassment statute. [Section 3-803 of the Criminal Law Article]. As with the more general crime of harassment, one cannot be prosecuted under this section until they have been warned to stop the contact.  Moreover, an electronic communication that is sent pursuant to a legal justification may not be the subject of a prosecution.  The law does not separately define what may be considered a legally justifiable purpose.

The other scenarios prohibited by the law are ones in which the victim is a minor. In this context it is a criminal act where “interactive computer service” is used to maliciously engage in a course of conduct that inflicts serious emotional distress on a minor or "places a minor in reasonable fear of death or serious bodily injury”. To obtain a conviction under this section, the State must show the defendant had the intent to seriously injure or harm a minor, or, acted with the intent to place that minor in fear of such harm. It is additionally illegal to maliciously use a series of electronic messsages to intentionally intimidate or harass a minor, and to in fact intentionally “cause physical injury or serious emotional distress to a minor”.   Whereas most of the activity prohibited by Maryland law involved a series of actions, or a “course of conduct” a single instance, where significant, can violate the provisions of this section. A single significant use of an electronic communication may form the basis of a conviction where it is sent in an effort to intentionally intimidate or harass a minor, and to in fact intentionally “cause physical injury or serious emotional distress to a minor”. For the State to obtain a conviction for a single act, they must also show that the defendant had been told to stop, and that it was likely that the target of the communication would share it with another person, or, the communication is so extreme that it “shocks the conscience”.  Additionally, the law punishes specified forms of “electronic conduct” directed at a minor designed to intentionally intimidate or harass a minor, and to in fact intentionally “cause physical injury or serious emotional distress to a minor”. The law defines electronic conduct to include a fake social media profile or posing as another person, to such shocking conduct as subscribing a minor to a pornographic site. 

    Source: Section 3-805 of the Criminal Law Article 

If a defendant can show they engaged in “Peaceable activity” that was intended to be informational, political speech, or for activity with an otherwise lawful purpose, they have a defense to a charge under this section. If the State can demonstrate that any of the above conduct was undertaken with an unfathomable and unbelievable intent to  induce a minor to commit suicide, the penalty is enhanced substantially to 10 years in prison with a $10,000 fine.