Wednesday, May 20, 2015

The Facebook Posts, Cyberstalking and "Substantial Emotional Distress"

This post examines a recent opinion from the Florida Court of Appeals that involves domestic violence and “cyberstalking.”  Horowitz v. Horowitz, 2015 WL 1443223 (District Court of Appeals of Florida – Second District 2015).  The best explanation of how the case arose appears in the brief Sammie D. Horowitz filed in appealing a judge’s entry of an “injunction for protection against domestic violence” against him.  Horowitz v. Horowitz, Initial Brief of Appellant, 2013 WL 7101921 District Court of Appeals of Florida – 2d District 2013). 
The brief explains that Maureen P. Horowitz filed a petition for the entry of such an injunction against Sammie on July 1, 2013, {alleging cyberstalking, abuse of alcohol, violence in the household, and pornography.”  Horowitz v. Horowitz, Initial Brief, supra.  It also explains that the judge who had the case held an evidentiary hearing on July 9, 2013. Horowitz v. Horowitz, Initial Brief, supra.  The brief goes on to explain that at the hearing, Maureen
spent a considerable amount of time testifying as to events relating to her allegations of cyberstalking and a brief discussion of alcohol use, pornography, and violence in the home.

Shane Taylor, [Maureen’s] witness, testified that he examined [her] computer. . . . The examination revealed that the computer contained a key logger, which tracks the strokes on a keyboard thereby allowing someone to ascertain what is being typed. . . . To obtain information from the key logger, one would have to have access to the computer at the home or have remote access. . . . Mr. Taylor was unable to determine whether this key logger was installed or whether it had been placed on the computer through a virus obtained using the Internet. . . .
Horowitz v. Horowitz, Initial Brief, supra. 
Next, Maureen testified as to the
events alleged to be cyberstalking, abuse of alcohol, and violence in the household. [Maureen] testified that [Sammie] knew what she was doing on the computer because he had told her he paid someone to check up on her computer use. . . . However she did not know what exactly [he] had done to check up on her. [Maureen] believed this to be happening because [Sammie] would tell her what songs she listened to and, in particular, posted on his Facebook an eighties song, `Secret Lovers’, she had watched earlier on YouTube, in the privacy of her own home. . . . [Maureen] also stated that [Sammie] had posted to his Facebook copies of her Facebook messages. . . . Further, she gathered Internet provider (`IP’) addresses that had accessed her email. . . . By entering the IP addresses she did not recognize as her own into a Google search, she was able to ascertain the IP addresses coordinates and narrow down a geographic location. . . . One of the coordinates was [Sammie’s] mother's house, where he was living. . . .

[Sammie’s] alcohol use, weapons, pornography, and violence were addressed briefly. [Maureen] testified that, over the past several years, [he] drank sixteen ounces of rum nightly and occasionally consumed beer in conjunction with the liquor. . . .  What particularly bothered [her] is that [he] attempted to drive their daughters around after drinking. . . .

[Maureen] testified about [Sammie’s] weapons, saying he had numerous. . . .  She stated that [Sammie] would position his hand like a gun, point it at her, and say, `til death do us part.’ . . . Although she mentioned an incident she observed between [him] and her friend during which [Sammie] held a gun to her friend's head, [Maureen] did not claim [he] ever used the weapons against her. . . . Next [Maureen] briefly addressed what she referred to as [Sammie’s] pornography problem. . . . She stated that he does not respect their daughters' privacy and will enter the bathroom when they are taking a shower. . . .
Horowitz v. Horowitz, Initial Brief, supra. 
Sammie then took the stand and
denied the allegations. . . . He testified that he did not install a key logger or hire anyone to do so. . . . Rather, when [Maureen] asked whether he had someone following up on her, he responded that he did, although it was not true. . . . All the information that [Maureen] alleged was obtained through a key logger on her personal computer was in fact obtained on their family computer that they shared and had key loggers on previously. . . . [Sammie] testified that when he reviewed the key logs it was evident that [Maureen] was having an affair. . . .

When [his] counsel attempted to introduce evidence of an affair to show [Maureen’s] motivation to fabricate these incidents to prevent [Sammie] from revealing her affair, the Judge sustained [her] objection. . . . Sammie testified that he posted lyrics on his Facebook page and inadvertently posted a message meant for his brother on his Facebook page, but quickly deleted it. . . .
Horowitz v. Horowitz, Initial Brief, supra. 
Sammie also testified that he
would pass out vitamins on a nightly basis to his daughters and he did not walk in on them without first knocking and asking permission. . . . He stated that on one occasion he was going to drive his daughter to the store after having a beer several hours earlier, but instead rode along because his wife had an issue with it. . . . In addition, he testified that he did not regularly consume the exorbitant amount of alcohol that was claimed. . . .
Horowitz v. Horowitz, Initial Brief, supra. 
After the hearing, the judge “granted a permanent injunction for a twenty-four month period.” Horowitz v. Horowitz, supra.  The propriety of that order is, of course, the issue the Court of Appeals is examining in this opinion.
The court began its analysis of that issue by explaining that in her initial
petition for an injunction, [Maureen] alleged both that she was the victim of domestic violence, namely cyberstalking, and that [Sammie] had engaged in behavior that led her to believe she was in imminent danger of becoming a victim of domestic violence. As this court explained in Branson v. Rodriguez–Linares, 143 So.3d 1070 (Florida Court of Appeals – 2d District 2014), either basis, when proved by competent, substantial evidence, would support issuance of the injunction.

After an evidentiary hearing, the trial court found [Maureen] had presented sufficient evidence to support the allegations in her petition and granted the injunction. However, the trial court did not specify whether it was granting the petition because [she] established that she actually was a victim of domestic violence or because she established that she had reasonable cause to believe she was in imminent danger of becoming a victim of domestic violence. Thus, we address both bases.
Horowitz v. Horowitz, supra. 
It went on to analyze the issue of “cyberstalking,” explaining that it is
a form of domestic violence against which a person may obtain an injunction. Branson v. Rodriguez–Linares, supra.

`”Cyberstalk”’ means to engage in a course of conduct to communicate, or to 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.’
Horowitz v. Horowitz, supra (quoting Florida Statutes § 784.048(1)(d) (2013)).
The Court of Appeals then explained that Maureen claimed she was the
victim of cyberstalking based on two posts on [Sammie’s] Facebook page. The first post contained the lyrics to Atlantic Starr's 1985 single `Secret Lovers.’ The second of [Sammie’s] posts contained the text of a private message conversation [Maureen] had with a third party via her own Facebook account. [She] testified that these posts showed [Sammie] either `hacked’ her computer or was somehow spying on her because she had recently been listening to `Secret Lovers’ on her personal computer in the privacy of her own home and because her private message conversation would have only been observable by accessing her personal Facebook account.

She also testified that unbeknownst to her, there was a keylogger program, which would track her computer use, installed on her personal computer and that [Sammie] told her he had someone watching her. She did not present any evidence that [he] actually installed the keylogger.
Horowitz v. Horowitz, supra. 
It then found that Maureen’s
Facebook posts do not meet the statutory definition of cyberstalking for two reasons. First, the posts were not `directed at a specific person.’ § 784.048(1)(d). The testimony showed that [Sammie] posted the information to his own Facebook page. Screenshots of the posts admitted into evidence confirm that they were posted to [his]s page and that [Maureen] was not `tagged’ or mentioned, nor were the posts directed to her in any obvious way. Unlike email communication, which this court considered to be cyberstalking in Branson v. Rodriguez–Linares, supra, 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 testimony adduced at the hearing showed that [Maureen] was able to view the posts by visiting [Sammie’s] Facebook page because the two were still `friends’ on the social networking website. Although [Maureen’s] assertions that [Sammie] somehow `hacked’ into her Facebook account are disconcerting, that behavior alone does not amount to cyberstalking as it is not an electronic communication. See Young v. Young, 96 So.3d 478 (Florida Court of Appeals – 1st District 2012) (`Ms. Young's acts in the case at bar, which consisted of changing her husband's password, appropriating his emails, and including them in a filing in their divorce proceeding, do not amount to cyberstalking, because they were not electronic communications by her of ‘words, images, or language . . . directed at’ Mr. Young’).

Even considering the posts in the context of [Sammie’s] statements that he had someone watching Mrs. Horowitz, they do not qualify as cyberstalking. See Arnold v. Santana, 122 So.3d 512 (Florida Court of Appeals – 1st District 2013) (reversing injunction where `Appellant sent [Appellee] text messages in which he warned her to change her passwords because he was tracking everything she was doing, and informed her that he was also following her’).
Horowitz v. Horowitz, supra. 
The court also found that Maureen had
failed to show that the posts caused her `substantial emotional distress.’ § 784.048(1)(d). She testified that the posts were `a matter of concern’ to her and that they `prevented [her] from having any privacy within [her] own home.’ The record is devoid of any other mention of [Maureen’s] reaction to the posts. Because her testimony as to her reaction to the posts was `conclusory and vague’ it was insufficient to show that she had been a victim of domestic violence. See Alderman v. Thomas, 141 So.3d 668 (Florida Court of Appeals – 2d District 2014) (reversing injunction where petitioner testified `that she feels “insecure and unsafe with” [respondent] and that he scares her’).
Horowitz v. Horowitz, supra. 
The Court of Appeals then took up the other issue in the case, explaining that
[h]aving concluded that [Maureen] failed to show that she was the victim of domestic violence, we now turn to the issue of whether she established that she had reasonable cause to believe she was in imminent danger of becoming a victim of domestic violence. We conclude that she did not.
Horowitz v. Horowitz, supra. 
It pointed out that
[i]n attempting to show she was in danger of becoming a victim of domestic violence, [Maureen] testified as to three instances of past physical abuse on the part of [Sammie], the most recent of which occurred no less than fifteen years prior to the filing of the petition.

She further testified that `a few times over the years’ he held his hand in the shape of a gun, pointed it at her, and stated `til death do us part.’ She added that [Sammie] would `routinely’ stand in the doorways of rooms she was in and block her from leaving, which she found to be intimidating. [Maureen] could not provide a specific time or place that [Sammie] engaged in these behaviors.

Near the end of her direct examination, the following exchange occurred:
[Counsel]: Are you afraid of this man?
[[Maureen]: Yes.
[Counsel]: Are you afraid he'll hurt you physically?
[Maureen]: Eventually, yes.
Horowitz v. Horowitz, supra. 
The Court of Appeals then held that the
physical incidents identified by [Maureen] are too remote to be considered reasonable cause to believe that she was in imminent danger of becoming a victim of domestic violence. See Gill v. Gill, 50 So.3d 772 (Florida Court of Appeals – 2d District 2010) (`[A]n isolated incident of domestic violence that occurred years before a petition for injunction is filed will not usually support the issuance of an injunction in the absence of additional current allegations’); Jones v. Jones, 32 So.3d 772 (Florida Court of Appeals  - 2d District 2010) (reversing injunction where petitioner presented evidence of a pushing incident occurring three years prior and a statement from the respondent that he was not threatening wife `yet’).

Likewise, the allegations regarding [Sammie’s] `finger-gun’ gesture, his habit of `routinely’ blocking [Maureen’s] path, and her statement that she was afraid he would eventually hurt her, although troubling, are too vague to provide competent, substantial evidence supporting the injunction. See Alderman v. Thomas, supra.
Horowitz v. Horowitz, supra.  It therefore reversed the trial judge’s entry of the permanent injunction. Horowitz v. Horowitz, supra.  

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