Lawyers Weighing When Social Media Contact Violates PFA
Ben Seal, The Legal Intelligencer
No contact means no contact in the case of a protection-from-abuse order, including contact made in the legally unsettled land of social media, lawyers say.
Lawyers familiar with social media issues said that to uphold the purpose of a PFA, commenting on or liking a petitioner's Facebook photo should be considered a violation, but the offender's intent in a stray interaction could be a question of law yet to be settled by the courts.
Most of the case law regarding social media deals with discovery and the admission of evidence, but several attorneys pointed to the U.S. Supreme Court's June 1 decision in Elonis v. United States, which held that a defendant's state of mind matters when making violent threats on Facebook. The same issue could be at the heart of potential litigation over a PFA violation.
"Will there be any First Amendment protections afforded expressing yourself in terms of liking something?" said Matthew T. Mangino, a former district attorney of Lawrence County. "That may be the next question."
According to the Wilkes-Barre Times Leader, a Jenkins Township man was arrested earlier this month for allegedly violating a no-contact order by liking 22 of his ex-girlfriend's photos on Facebook. Mangino said he was able to find similar cases in which a person was charged for the use of social media, but no case law dealing with the issue was readily available.
Leeza Garber, corporate counsel at Capsicum Group, who focuses on technology, said the Elonis court's discussion of mens rea could be an indicator of the direction this issue might take.
"Did they really mean by one Facebook like or a retweet or something like that to harass that person? Generally, you're probably going to say yes, because any sort of contact is still contact," Garber said.
While liking someone's photos on Facebook is clearly contact for the purpose of a PFA, the full range of potential interactions on social media presents opportunities for intent to come into question, said Jennifer Ellis of Lowenthal & Abrams, who specializes in social media and ethics.
For example, if a defendant and petitioner had a mutual Facebook friend and the defendant liked or commented on something on that third party's page that the petitioner then saw, the implications would be less clear than in an instance of direct contact, Ellis said.
Drawing a specific line in the sand to denote what qualifies as contact over the Internet is a difficult proposition, attorneys agreed. Context is key, said Daniel J. Siegel, who provides ethical guidance on technological issues. A comment could be made without issue in one environment, but the same comment in a different environment could be viewed as harassment, he said. The myriad permutations of social media and Internet communication would make the creation of a universal rule a challenge, he said.
"Obviously, direct communication isn't permitted," Siegel said. "As you move back, where does that line get drawn? A lot of it is going to be on a case-by-case basis."
Alexander Lindsay Jr. of The Lindsay Law Firm agreed with Siegel. Without a rule in place addressing social media in the PFA context, the circumstances of each individual arrest will determine the result, he said.
Garber said a federal response would be helpful to clarify any open questions and ensure that restraining orders are able to serve their purpose without any room for workarounds. She noted two arrests made in Beverly, Massachusetts, last year in which people allegedly violated restraining orders through social media.
According to the Newburyport News, police said one woman used her Pinterest account to follow her daughter, who had taken out a restraining order. After receiving an email from Pinterest, the daughter went to the police to report the violation.
In a similar case, a man was charged with violating a restraining order after his ex-girlfriend received a Google Plus invitation, purportedly from him. His lawyer argued there was no way to authenticate who sent the email because it was generated by Google, according to the newspaper.
Mangino suggested that, if taken to trial, such a case could hinge on testimony about how Facebook or any other social media site works. It raises a bevy of questions with no clear path to an answer, he said.
"Can I do something unintentionally that leads to this kind of contact?" Mangino said. "We're using the Internet so pervasively—everybody uses it. Can a protective order essentially mean you can't go on the Internet because you may inadvertently contact the petitioner and violate the PFA?"
Because each social media site functions differently and offers different avenues of communication, litigation would likely need to consider each outlet separately. A like isn't the same as a retweet, and considering every outlet would serve to bog down every case, Garber said.
Even though social media's fleeting nature can make it seem that online interaction is at a remove from the type of contact that has long been considered a PFA violation, even liking one photo on Facebook is contact that demonstrates a dangerous mentality the PFA is meant to prevent, Garber said.
"For the victim, that's still very terrifying," she said. "You understand that that person is probably saying, 'I still see what you do.'"
For that reason, even the smallest form of contact should be a violation, regardless of intent, Ellis said.
"When it comes to contact, I don't see a question," Ellis said. "When it comes to technology, [offenders] think the law is different. But to me, technology is just another way of doing what we already do. ... If you can't do it offline, you can't do it online."
Ben Seal can be contacted at firstname.lastname@example.org or 215-557-2368. Follow him on Twitter @BSealTLI. •
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