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Troublesome Tagging: Florida’s Evolving Standard for Injunctions against Cyberstalking

CyberstalkingBy: Iman Zekri, Esq.

Social media is everywhere. Wherever you look, people are connecting, sharing, tagging, liking, commenting, and posting on their devices. Some use social media to stay in touch with family and friends, others use social media to network and market their brand, and yet many others use social media for both of these purposes—connecting with other users both personally and professionally on a variety of networks. Facebook, Twitter, LinkedIn, Instagram, Reddit, Snapchat, TikTok, and several other social media sites have billions of users across the globe using their networks.

Unfortunately, as the prevalence of social media increases, so does the frequency of inappropriate behaviors on these platforms. In this digital age, domestic violence cases frequently involve allegations of cyberstalking as individuals can and do use the Internet to abuse, harass, and threaten others. If the legal standard is met, a court may issue an injunction for protection against cyberstalking to safeguard a victim from his or her virtual attacker.

What is Cyberstalking?

Before delving into the recent Florida case law addressing cyberstalking, it is necessary to define what behaviors constitute “cyberstalking” for purposes of obtaining an injunction for protection. Section 784.048(1)(d) of the Florida Statutes provides that to “cyberstalk” is

“to engage in a course of conduct to communicate . . . words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person; or to access, or attempt to access, the online accounts or Internet-connected home electronic systems of another person without that person’s permission.”

A central part of this definition that courts have struggled to clearly delineate is what constitutes an electronic communication “directed at a specific person.”

“Directed at a Specific Person”

In Horowitz v. Horowitz, Florida’s Second District Court of Appeal held that Mr. Horowitz’s two social media posts did not amount to cyberstalking justifying entry of an injunction. The estranged wife in Horowitz alleged that she was a victim of cyberstalking based on two Facebook posts made by her husband. The first post contained song lyrics and the second contained the text of a private Facebook chat between the wife and another person. The wife asserted that both posts demonstrated the husband was either spying on her or hacked her computer since she was listening to the song privately outside of her husband’s presence and further, the private messages could only be accessed from her personal Facebook account.

In reversing the injunction entered by the trial court, the Second District explained that the posts were not directed at a specific person. The court noted that both posts were published on the husband’s own Facebook page, the wife was not tagged or mentioned in either of the posts, and the posts were not directed to the wife in any obvious way. Comparing the Facebook posts to customary email communications, the court in Horowitz noted,

“Posts to one’s own Facebook page are not directed at a specific person but are instead posted for all of the user’s Facebook ‘friends’ to see, depending on the user’s privacy settings.”

The evidence presented at the hearing revealed that the wife viewed the posts by visiting the husband’s Facebook page. Although the court found some of the allegations in the case to be disturbing, because the posts did not meet the statutory definition of cyberstalking, the court reversed the injunction.

Social Media Tagging

Most recently, in 2020, the Fourth District Court of Appeal of Florida joined the conversation and grappled with the “directed at a specific person” element of Florida’s cyberstalking law. In Logue v. Book, the petitioner, an advocate for laws favoring sex offender registries and residency restrictions, filed for an injunction against the respondent who opposed sex offender laws. The petitioner pointed to three items posted on the respondent’s website and social media accounts in support of her cyberstalking claim.

The respondent had posted photos and the address of the petitioner’s home, shared a video of an obscene song, and published a cartoon depicting a gravestone with a vulgar reference to the petitioner. As the court noted, however, the petitioner learned of the posts only through third parties. The respondent never directly communicated with petitioner about any of the posts, nor did he ever send them to her. Because the posts were not “directed at” the petitioner, the appellate court held in favor of the respondent.

While the Fourth District ultimately reversed the injunction, the court adamantly refused to hold that social media posts are exempt from serving as the basis for an injunction. In dicta, the Fourth District observed:

“Social media postings that are not sent directly to an individual may nonetheless be directed at an individual in a number of ways, including by ‘tagging’ that person in a post, or by sufficiently describing the person in such a way as to make their specific identification possible. Such posts may also be designed so as to be reasonably likely to come to the attention of the targeted person, even if indirectly.”

Accordingly, a credible threat posted on social media may be actionable under Florida law even if the post was not sent directly to the intended victim.

Internet Safety and Privacy Tips

Although the injunctions in Horowitz and Logue were ultimately reversed, there are a few simple steps anyone can take to protect his or her social networking accounts and personal information. The Collier County Sheriff’s Office recommends that individuals keep their passwords to themselves, change their passwords frequently, and use privacy settings on social media as well as antivirus software. Following these tips can help minimize exposure to potential cyber-stalkers and identity theft criminals. Collier County Sheriff Kevin Rambosk shares, “It’s important to remember that behavior that makes someone feel scared, unsafe, or uncomfortable is never OK. Our detectives work closely with the staff at The Shelter for Abused Women and Children, and I am proud to serve on its board of directors.”

Take-Away

In sum, recent Florida case law addressing cyberstalking comports with the longstanding notion that obtaining an injunction is difficult and requires satisfaction of a high legal threshold. In considering a claim for cyberstalking, courts are cautious to balance First Amendment rights against the right to be free from fear of violence.

Florida’s District Courts of Appeal have not ruled out the possibility of social media posts constituting cyberstalking where the victim is tagged or specifically identified; however, the latest Florida case law addressing the issue requires that harassing or threatening posts be directed to the victim by delivery, rather than merely by content, in order to justify issuance of an injunction for protection against cyberstalking.

One thing is clear: It remains essential to think twice before posting on social media and to presume that every social media post will remain on the web for eternity.

Those needing assistance in divorce, marital, or family law issues may contact me at iman.zekri@henlaw.com or by phone at 239-344-1119.