Fortunately, to qualify as a criminal annoying communication, a phone call, text message, or other communication must be more than just annoying. It must use filthy language or make threats, or it must be part of a series of harassing phone calls.
The bad news is that determining what form of vulgar language or threats might lead to criminal liability for irritating phone calls is not always easy. The courts in California are still attempting to figure this out as well. This means that it may be difficult for someone to know whether or not what they’re doing is illegal.
Penal Code 653m PC- Are Annoying Calls Prohibited by Law?
Making annoying phone calls and communicating with people is prohibited by law. Let’s examine what are the criteria to define that communication is annoying;
- calls and communication shall be made by the intent to annoy
- shall contain any obscene language, or threat to injure the person, his family member, or property
- repeated communication shall have the intent to annoy or harass
We can conclude that there are several types of criminally annoying communication under the law;
- communication with the use of ‘’obscene’’ language,
- communication which involves a threat to injure,
- annoying or harassing repeated communication.
Besides the above mentioned, the law also qualifies as criminal such actions as not reaching the recipient but leaving a message to call back. In this case, when the recipient calls back and the person uses obscene language or threats in the phone conversation, this will be qualified as a violation under section 653m.
How to Distinguish Between a Simple Joke and the Use of Obscene Language or Threatening?
The most important element to criminalize the action is the presence of intent. This means that the person using this language or threatening shall have an intent to annoy or harass the recipient of the communication.
For example, in case 2 friends in their usual conversations use “obscene” language. They argue, and after that one of them calls and texts again using this language. The other friend cannot claim that the use of obscene language, which has always been a usual element in their conversations, had the intent to harass him.
Let’s also examine another situation. In case me and you have a common best friend and once we make a joke of calling and threatening to kill her the dog, and after several days we tell her about this joke, this will not be qualified as annoying calls and violation of the relevant section, as, there is no intent to annoy or harass our best friend.
How to Distinguish Between Business Calls and Annoying Repeated Communication?
The answer is again- the intent. For example, if every week you receive a call from an insurance company offering their new health insurance package, you cannot sue them for making annoying calls as they do not have the intent to annoy or harass you. Calling potential customers is their usual course of business.
What are the Legal Consequences for Violation of the Section?
Violation of section 653m is considered a misdemeanor. The punishment for such violation can be a conviction of up to six months in a country jail or a penalty in the amount of up to 1000 dollars. The defendant may also be sentenced to misdemeanor probation.
As defense tools, it is possible to claim that the intent of communication was not to annoy or harass the person. Moreover, it is also possible to claim that the language was not really “obscene”. Don’t forget that anyone has a right to freedom of speech by the Constitution. Thus, sometimes, qualification of the communication as having “obscene” language can violate the constitutional right of a person.