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When is social media contact criminal?

Stacked3This week's Daily Record column is entitled "When is social media contact criminal?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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When is social media contact criminal?

The online world is simply an extension of the offline world. So it’s no surprise that people’s behavior on social media sites can result in criminal charges. But the complexity of the relationships and privacy settings on different social media sites can sometimes complicate the process of proving that the conduct that occurred was in fact criminal.

This very issue arose recently in a case out of Florida — O’Leary v. State, 109 So. 3d 874 (Fla. Dist. Ct. App. 2013).*

In this case, the defendant was accused of sending written threats to kill or do bodily harm in violation of section 836.10, Florida Statutes (2011). Specifically, it was alleged that he posted on his personal Facebook “wall” statements — directed toward his relative and her partner — which constituted threats of serious death or bodily injury. The post was viewed by one of his cousins, who then informed his uncle of the post, who then in turn reported the post to the relative who had been threatened.

In reaching its decision, the court explained that controlling precedent established that the statute was violated when “1) a person writes or composes a threat to kill or do bodily injury; 2) the person sends or procures the sending of that communication to another person; and 3) the threat is to the recipient of the communication or a member of his family.”

The court then noted that a “communication” occurred since electronic communications were specifically enumerated in the statute. As such, the primary issue to be determined on appeal was whether the accused “sent” the message by virtue of his posting it on his personal Facebook page, an issue of first impression in Florida.

The accused argued that posting threats to his Facebook was the equivalent of simply “publishing” a message, which, in and of itself, does not constitute a violation of the statute since he took no other steps to ensure that the threat was seen by the people mentioned in the posting.

The court, however, disagreed, holding that to constitute “sending” under the statute, all that is required is that the message be posted where another can see it, whether it’s the person being threatened or a relative of said person.

The court explained that by posting the threats to his Facebook wall, the defendant intended for all of his “friends” to see it, including the cousin that he shared with the victim: “Given the mission of Facebook, there is no logical reason to post comments other than to communicate them to other Facebook users. Had appellant desired to put his thoughts into writing for his own personal contemplation, he could simply have recorded them in a private journal, diary, or any other medium that is not accessible by other people. Thus, by the affirmative act of posting the threats on Facebook, even though it was on his own personal page, appellant “sent” the threatening statements to all of his Facebook friends, including (his cousin).”

The court reached the right decision in this case, in part because it wisely analogized the online conduct to similar offline conduct. As I’ve often said, comparing online conduct to offline conduct leads to the correct analysis more often than not, since doing so makes the online conduct more understandable and accessible, despite its less familiar setting.

Online interaction may be a relatively new phenomenon, but when it comes right down to it, it’s no different than offline behavior. And in the case at hand, the medium didn’t change the message, it simply altered the channels of distribution.

* Brought to my attention by Rochester criminal defense attorney Gary Muldoon.

Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.

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