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Friday, September 20, 2019

Cyber Stalking: What You Need to Know Before Hitting Send

By: Mason T. Nettleton

As published in the Daily Business Review Practice Focus/Cybersecurity on September 19, 2019

More than at any point in history, our conversations and interactions are taking place electronically. At the end of your day, count on one hand how many face-to-face conversations you’ve had, and count on the other hand how many text and email conversations, Tweets, Facebook messages, Snapchats or direct messages you’ve exchanged that day. The more tech savvy you are, the latter surely outweighs the former.

While our iPhone and android devices give us virtually unlimited freedom to communicate with anyone at any time, the downside inevitably has been that electronic communications are often sent hastily, emotionally, and, are not always welcome by the recipient.

Stories of online harassment, bullying and abuse are now daily fare in the news. Florida law has attempted to impose law governing electronic communication between individuals in order to set boundaries and to provide individuals who fear they are victims of electronic harassment, bullying and abuse to obtain an injunction for protection in domestic violence court. This article describes the standard for seeking an injunction to prevent cyber stalking, as well as key legal considerations if you have been accused of cyber stalking in Florida.

Florida’s statute governing cyber stalking is Section 784.048(d), Fla.Stat., and defines cyber stalking as: engaging in a course of conduct to communicate, or, cause to be communicated, words, images or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.

Read literally the cyber stalking definition in Florida presents the potential for a single comment, text or email to be actionable. However, Florida case law has recently established a much stricter standard, looking directly at the “course of conduct” of the person sending the communication, and defining same as a “pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose,” see Scott v. Blum, 191 So.3d 502 (Fla. 2d DCA 2016); see also Klenk v. Ransom, 44 Fla. L. Weekly D1270a (Fla 1st DCA 2019). In order to obtain an injunction against cyber stalking, an individual must establish that a series of electronic communications directed at them caused substantial emotional distress, and served no legitimate purpose. Whether a communication causes substantial emotional distress on a particular individual is governed by the “reasonable person standard.” To justify an injunction, the conduct must be bad enough to produce substantial emotional distress in a reasonable person, and, it is not enough for someone to be merely “weirded out” or “uncomfortable,” quoting Paulson v. Rankart, 251 So. 3d 986, 990 (Fla. 1st DCA 2018).

A person accused of cyber stalking in Florida encounters potentially serious negative legal consequences almost immediately when a cyber stalking injunction for protection is filed against them, including: the loss of the ability to possess a firearm or ammunition; criminal prosecution for an alleged violation; public record of the existence of the injunction; and, potential restriction on employment and free travel, see. e.g., Burns v. Bockorick, 220 So.3d 438, 440 (Fla. 4th DCA 2017).

You are likely wondering, what are some real world examples of Florida’s cyber stalking law being applied? One Florida court found cyber stalking existed when a person sent “over 300 emails in a month and a half,” despite not including threatening language, see Branson v. Rodriguez-Linares, 143 So.3d 1070 (Fla. 2d DCA 2014). Another Florida court found cyber stalking did not occur when a wife used a husband’s computer password to read his email, divulge his private communications within their divorce proceedings and changed his access passwords so he could no longer access his account in Young v. Young, 96 So.3d 478, 479 (Fla. 1st DCA 2012).  While the wife’s conduct was noted to be inappropriate, no evidence existed that the wife threatened or otherwise stalked her husband. In another case, a Florida court found cyber stalking did not occur merely from posting Facebook comments on a Facebook page about a person, but not tagging or otherwise directing the comments toward that person, see Horowitz v. Horowitz, 160 So. 3d 530, 531 (Fla. 2d DCA 2015).

While Florida courts appear to strictly construe the cyber stalking statutory language and require in any cyber stalking action that the communication be “directed at a specific person,” it is anticipated the courts will continue to issue opinions on application of this relatively new cyber stalking statute. In conclusion, as our interaction continues to shift from in-person to electronic communication, it remains important to monitor how the law will be applied to our new electronic interactions.

Mason T. Nettleton, is a shareholder at Fowler White Burnett where he focuses his practice on family law, litigation and insurance. He can be reached at MNettleton@fowler-white.com.

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