Appellate court: Ex’s behavior troubling but not cyberstalking

For divorced or divorcing couples, social media can be a double-edged sword.

Cyber Spying - computer screenIf you are on good terms with your ex, it can be a good way to keep in touch. But if your separation was contentious, it can quickly turn into what one or the other might consider cyberstalking.

Such was the case that came before the Second District Court of Appeal earlier this month in Horowitz v. Horowitz (2D13-3871)

At the trial court level, the wife sought and won an injunction for protection against domestic violence from her ex-husband. She based her allegations of cyberstalking on two posts that had appeared on Mr. Horowitz’s Facebook page.

One post contained the lyrics to the song “Secret Lovers,” which the ex-wife claimed she had been listening to. The second post contained the text of a private message conversation that she had with a third-party on her own Facebook account. The ex-wife alleged that the post indicated her former husband had either hacked into her computer or was using a “keylogger” program to track her computer use. Such a program allows the user to capture information being typed on a computer – unbeknownst to the user.

However, she did not present evidence that her ex had installed the program. And, the court noted that even if he had, it did not constitute cyberstalking because it must involve words, images or language directed at the victim.

On appeal, the court found that Mr. Horowitz’s Facebook posts did not meet the statutory definition of stalking for two reasons: First the posts were not “directed at a specific person” as defined by Florida statutes § 784.048(1)(d)

““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.”

Mrs. Horowitz was able to see the post – which appeared on her ex’s Facebook page – because they had remained “friends” on the social media site.

Second, the appellate court found that Mrs. Horowitz failed to show that her husband’s post caused her “substantial emotional distress” as, once again, defined by Florida statutes § 784.048(1)(d).

The appellate court also concluded that she failed to show she was the victim of domestic violence. Although Mrs. Horowitz testified about three instances of past physical abuse on the part of her ex-husband, the most recent had occurred no less than fifteen years before she had filed the petition. She also testified that her ex had a habit of holding his hand in the shape of a gun and pointing it at her, or standing in doorways to block her from leaving – both of which she found to be intimidating.

However, she could not provide a specific place or time during which he engaged in those behaviors.

The appellate court found that while “troubling” the allegations were “too vague to provide competent substantial evidence” to support an injunction. As a result, the appellate court reversed the lower court’s ruling.

Florida law is clear on what constitutes cyberstalking. It requires a stalker 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, causing substantial emotional distress to that person.”

Cyberstalking happens more often that you might think. Unless you are on the best of terms, it’s often a good idea to cut social media ties after a divorce. Barkus Law can help either fight charges of cyberstalking or represent you in court if you believe you have become the victim of an ex-spouse’s cyberstalking.

Lori Barkus is a Florida Supreme Court Certified Circuit Civil and Family Law mediator and guardian ad litem. She handles matters relating to divorce, custody, child support, paternity, collaborative divorce, adoption, parental rights, and family law and civil mediation.

Ms. Barkus is a cum laude graduate of the University of Miami School of Law. She is admitted to practice in Florida, Georgia and the District of Columbia, as well as in the Southern and Middle Districts of Florida and the Eleventh Judicial Circuit Court of Appeals. She is also a member of Leading Women for Shared Parenting.

If you are interested in a consultation or have questions do not hesitate to contact Barkus Law. Simply click here and send us a message and we will get right back to you.

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