Texas recently enacted a law, effective September 1, 2009, that criminalizes online harassment. Texas joins other states, including Nevada, New York and Tennessee, which have enacted similar legislation criminalizing the use of electronic communication devices to commit criminal stalking and harassment.

Although speaking in terms of “online harassment,” the law is aimed at outlawing online impersonation with the intent to cause harm. Thus, the law outlaws the unauthorized use of another’s name or persona to create a web page, or to post one or more messages on a commercial social networking site, with the intent to defraud, harm, intimidate or threaten another person. This offense is a third-degree felony, punishable by two to ten years imprisonment and a fine not to exceed $10,000.

The law also criminalizes the unauthorized transmission of an electronic communication (e.g., e-mail, text message, or instant message) using another person’s identifying information (e.g., name, domain address, phone number, etc.) with the intent of causing (a) the recipient to believe the send was the other person, and (b) harm to any person. This offense is a Class A misdemeanor, punishable by up to one year of imprisonment and a fine not to exceed $10,000.

While the Texas law, and laws like it, may not seem particularly helpful to employers at first blush, they actually may give the employer the upper hand in one of the most vicious forms of attacks by tech-savvy, disgruntled, former employees. In these attacks, the former employee “spoofs” a hated supervisor or executive in a phony social networking profile or e-mail communication to other employees. These spoofs often are defamatory and designed to humiliate the target. Because the creator or sender is hiding behind a false persona, it can be expensive and difficult to obtain any relief through civil litigation. Prosecutors, on the other hand, most likely will have a much easier time uncovering and stopping the perpetrator without any cost to the employer.

This entry was co-authored by Philip L. Gordon and Jeffrey U. Javinar.