Nobody wants their mistaken understanding of “freedom of speech,” to become a loss of freedom. With increasing technology, comes a greater opportunity to harm others through the spread of false information. Although we have certain “First Amendment” rights for freedom of speech, they have never been absolute. The classic example is when someone yells “fire” in a crowded theater. That person may be held civilly or even criminally liable if others were subsequently trampled or otherwise harmed in a rush to the exit.
With social media, Covid, and constant contact, the whole world has become that “theater,” and the risk of civil or even criminal repercussions all that much greater. Indeed, in this era of Covid and “internet trolls,” federal and California laws are increasingly targeting those who spread false information online.
Learn what your rights and responsibilities are below.
Can I Be Charged for Sharing Misinformation Online?
In this blog post we will mostly be concerned with criminal repercussions. Just know that the opportunity for civil litigation or negligence is much greater, and the standards and burden of proof lower to prove a civil case. With that said, let’s turn our attention to the criminal law application of online misinformation.
Unfortunately, it appears we live in an increasingly fractured society. You may see those warning statements on social media platforms—such as Facebook—stating that a user’s Covid post or other information is potentially inaccurate and providing you with links to the Center for Disease Control (“CDC”).
One person’s reality may be another’s fiction, and vice-versa, but equitable laws must be concerned with the common good. Misrepresentation of facts may cause emotional or physical harm to others. But what are some of the California state or Federal laws that may apply to spreading online misinformation?
We’ll begin with misinformation and the disenfranchisement of voting rights.
Misinformation and Voting Rights
California made national headlines in September 2020, when it passed legislation making it a criminal misdemeanor to intentionally spread voting misinformation. For instance, if an individual was found to intentionally spread information about the right or availability to vote by mail, it may now be criminally punishable.
But such disenfranchisement laws are not the only example of criminal sanctions being enforced for the spread of false information. In the era of Covid, false health or vaccine information remains a top concern with potential impact to both public health and personal liberties.
Misinformation and COVID
While we fight as a nation for “herd immunity,” there currently exists legal immunity for third party platforms such as Twitter or Facebook, whereby they cannot be sued for their user’s spread of health misinformation. A recent senate bill sponsored by Senator Amy Klobuchar, of Minnesota, attempts to remove third party “platform immunity” from Section 230 of the Communications Decency Act, if it can be demonstrated that such platforms “algorithmically promote health misinformation”, as defined by the Department of Health and Human Services (“HHS”) during a national health crises. Likewise, California has recently cracked down on commercial enterprises making false claims for Covid medicine.
In terms of individual criminal liability, however, the laws have not yet caught up with the situation. Standard laws applying to fraud, hoaxes or inciting a riot (§California Penal Code 404.6 PC) are on the books, but rarely policed on social media.
Future legislation will likely address the situation of spreading false information in a health emergency and has already been passed in many other countries.
Although the First Amendment “Freedom of Speech” applies to many classes of speech, it does not generally apply (or is given lesser protection) in matter such as:
And as stated above, this blog post is addressing criminal repercussions. Civil litigation will provide many more avenues for potential exposure, including negligence, recklessness, and the like. Although you may not face jail time or other criminal sanctions in a civil lawsuit, it may still be an expensive and life-altering experience.
And although the First Amendment and a high burden of proof (“beyond a reasonable doubt”) apply to criminal cases, in many types of civil litigation the burden is “clear and convincing evidence” or even a “preponderance of the evidence,” meaning it must only be proven as “more likely than not” that your actions led to harm of a third party.
Misrepresentation and false information cases are extremely fact sensitive. To learn more about misrepresentation laws you should discuss your specific matter with experienced legal representation.
Concerned About Criminal Misinformation Charges? Count on Corrigan, Welbourn, Stokke, APLC
With more than one hundred years of combined criminal defense experience in the federal and state courts of California, our former prosecutor defense attorneys stand ready to assist you with any criminal matters you may confront in Newport Beach, Orange County, and our surrounding communities.
Call(949) 251-0330 today to schedule a consultation, or fill out the requested information on our firm contact form. We will help you better understand your rights and help you move forward in an efficient and appropriate manner.
We look forward to hearing from you.