While most states have laws covering at least some aspects of online abuse, what these laws cover and how they are interpreted by the courts varies widely.
Most states have laws addressing at least some aspects of “cyber” harassment, whether related to improper use of devices (illegal hacking and surveillance, for example) or harassing behaviors (such as cyberstalking and the distribution of nonconsensual intimate imagery). Many state laws that are focused on offline stalking and harassment have been amended to include language addressing the use of electronic forms of communication to perpetrate online harassment.
At the state level, you can pursue legal remedy via criminal and civil law. In civil cases, the victim and their lawyer sue the harasser for monetary damages and/or other forms of relief. In criminal cases, the state prosecutes the harasser, which can result in fines, probation, and/or prison time. For more on the difference between criminal and civil cases, see Legal Basics 101.
How these laws can be applied varies widely depending on the offense and on the state. This Field Manual outlines the types of laws to look out for and potentially leverage (rather than detailing the laws in each state). Legal action can generally be pursued in the state where either the perpetrator or the victim lives, but jurisdictional issues are complex and vary from state to state. Before taking any action in a state court, you should consult with a lawyer who practices in the state and in this area of law.
If you are being harassed online because of something you published, posted, or created—or you are being targeted because you are a public figure—criminal law may protect you. However, law enforcers have considerable discretion about which cases to investigate and prosecute, and their decisions can be shaped by implicit and explicit biases. Law enforcers are sometimes more likely to help if the person being harassed is a public figure. As a rule of thumb, the victim should focus not on what provoked the harassers, but on what the harassing behavior actually looks like. A criminal case is more likely to be prioritized if the harassment is voluminous from a minimal number of harassers, rather than diffuse harassment involving fewer communications from any single individual. Unfortunately, there is no certainty of legal punishment for abusive or hateful conduct.
If you are experiencing online abuse, you can file a report with local law enforcement. If you feel you are in immediate danger, however, dial 9-1-1.
Cyberstalking and cyber harassment are interconnected but distinct:
- Cyberstalking generally refers to more severe forms of abuse or harassment online that constitute a credible threat of harm to an individual. In a legal context, cyberstalking is the prolonged and repeated use of abusive behaviors online (a “course of conduct”) intended “to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate” the victim [See: 18 U.S. Code § 2261A].
- Cyber harassment, also referred to as online abuse or online harassment, is generally defined more broadly than cyberstalking and encompasses a broader range of abusive tactics. Cyber harassment is online expression targeted at a specific person that causes the individual substantial emotional distress. In many states, the harassment must be repeated such that it amounts to a “course of conduct” and the perpetrator must act with the intent to harass, annoy, alarm, or threaten. However, some states may criminalize even a single act of harassment.
Many states don’t have specific criminal laws that differentiate online and offline conduct. Your state may have harassment and stalking laws, but not cyberharassment or cyberstalking laws. Fortunately, standard harassment and stalking laws typically apply broadly to communications—including online communications.
In order for cyber harassment or cyberstalking to be punishable as a criminal offense, it must cause the victim disturbance, substantial emotional distress, or place the victim in reasonable fear of death or serious bodily injury, or in fear that the same thing might happen to a member of their immediate family or an intimate partner.
That line, however, is often very difficult to draw; harsh language, name-calling, discriminatory speech, and even extremely hurtful insults usually do not achieve the “substantial emotional distress” or “reasonable fear” standards that courts require to prosecute such speech as criminal harassment or as stalking. Generally, the harasser must intend that their statements be perceived by the victim as a credible threat—even if the harasser never intended to carry out that threat.
Doxing is the publishing of sensitive personal information online (such as a home address or contact information) in order to harass or intimidate the targeted person.
There are currently no federal or state laws that explicitly criminalize doxing members of the public. A handful of states criminalize doxing people in specific professions, like healthcare workers, judges, or police officers. While there have been legislative proposals to prohibit doxing more broadly, none have yet been enacted. Depending on the circumstances of the doxing, prosecutors may have to rely on state or federal statutes focused on stalking, harassment, identity theft, or computer hacking to pursue their case.
Nonconsensual Intimate Imagery (aka “Revenge Porn”)
Nonconsensual intimate imagery (“NCII”) refers to the sharing of private, sexually explicit images or videos without the consent of the person featured in them.
The District of Columbia and 48 states — all except Massachusetts and South Carolina — currently have laws on the books criminalizing conduct related to NCII. These laws are somewhat more straightforward than the stalking and harassment statutes discussed above because they criminalize a particular act less likely to be confused with constitutionally protected speech.
However, an important variation among these laws is whether they broadly criminalize any nonconsensual dissemination of private sexual images or whether they also specify that the perpetrator must have intent to harm the victim. A majority of states require the perpetrator act with the intent to harm, which can make it more difficult to successfully prosecute the offender.
Even if a harasser’s conduct does not result in criminal prosecution, targets of online abuse may be able to pursue a civil cause of action against the abusive individual by suing them in civil court for “tort claims,” in which a plaintiff seeks monetary or injunctive relief from those who have caused them injury or harm (injunctive relief means the court is compelling the harasser to do or not do something). Tort claims vary from state to state, but common tort claims include: intentional infliction of emotional distress, invasion of privacy (also known as “public disclosure of private facts”), and defamation.
Some states, like California, provide a civil claim specifically for NCII, under which victims can sue the person who distributed intimate images. However, some state NCII laws can make it harder for the victim to seek justice. For instance, one common provision allows the nonconsensual distribution of a person’s intimate imagery if the release is in the “public interest.” This potentially grants less protection for public figures, such as politicians and celebrities.
Only about a dozen states have passed legislation explicitly providing a civil cause of action against a stalker. In most states, civil claims in this area must be brought under the more common torts listed above. You should consult with a lawyer to determine the best way to pursue your case.
Depending on state law, civil remedies for victims of cyber harassment and cyberstalking can include:
- monetary compensation for the infliction of emotional distress and, in certain cases, for illness or other physical harm that resulted from that emotional distress;
- additional “punitive damages” meant to deter the perpetrator from continuing the harassment, depending on the character, frequency, and severity of the harassment;
- a restraining order forbidding the harasser from contacting the victim or posting information about them; or
- other “injunctive relief,” where a court can compel a harasser to do or not do something, such as remove content they have posted online that is defamatory.
Restraining orders are court-mandated decrees that can require the perpetrator to cease all contact with the victim, and can be a useful tool in cases of online abuse. More information about the process of seeking a restraining order can be found here.
The Cyber Civil Rights Initiative offers comprehensive information about laws related to nonconsensual intimate imagery on a state-by-state basis, including information on which states have public interest exceptions.
- Documenting Online Abuse
- Assessing Online Threats
- Reporting to Law Enforcement
- Legal Basics 101
- Federal Laws
- Restraining Orders
- Case Studies
- Legal Resources for Writers & Journalists
PEN America is deeply grateful to Covington & Burling LLP and C.A. Goldberg, PLLC Victims’ Rights Law Firm for providing pro bono feedback and insights on legal considerations for people facing online abuse.
IMPORTANT: THE INFORMATION PROVIDED ON THIS WEBPAGE IS OFFERED FOR EDUCATIONAL PURPOSES ONLY. THE INFORMATION DOES NOT, AND IS NOT INTENDED TO, CONSTITUTE LEGAL ADVICE, NOR IS IT INTENDED TO REPLACE THE ASSISTANCE OF A LAWYER OR LAW ENFORCEMENT