NY judge weighs in on whether ‘tagging’ violates order of protection

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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NY judge weighs in on whether ‘tagging’ violates order of protection

Social media permeates every aspect of our lives so it’s not surprising that online interactions can sometimes trigger criminal prosecutions. That’s why, in the past I’ve discussed how social media and other online communications can constitute aggravated harassment or violate pending orders of protection.

That’s exactly what occurred in People v. Gonzalez, Case No. 15-6081M. This decision was handed down by Westchester County Supreme Court Justice Susan Capeci in January of this year and addressed the issue of whether certain Facebook activities violated an order of protection.

At issue was whether the defendant committed criminal contempt in the second degree when she “tagged” the protected party in posts made to Facebook. In this case, an order of protection was in place in favor of the complainant and required that the defendant ”refrain from communication or any other contact, directly or indirectly through third parties, by mail, telephone, e-mail, voice mail or other electronic or any other means ...."

It was alleged that the order of protection was violated when the complainant received notifications from Facebook that the defendant:

did "tag" [the protected party] in two Facebook posts the "first stating
"Stupid." The second post the defendant tagged [the protected party] in stated: "You
and your family are sad:(sonia and especially maribel!! You guys have to come stronger
than that!! I'm way over you guys but I guess not in ya agenda.

The defendant did not deny the conduct but instead contended that the conduct alleged—that she “tagged” the complainant in two Facebook posts—was not specifically prohibited by the order of protection.

The Court disagreed, noting that the order of protection clearly specified the type of conduct that was prohibited—communication via electronic means—and that the defendant’s conduct was targeted toward the complainant:

The Court finds the above communication alleged to have been made by the
defendant via Facebook to be sufficient to establish, if true, every element of the
offense charged and the defendant's commission thereof. The Order of Protection
prohibited the defendant from contacting the protected party by electronic or any other
means. The allegations that she contacted the victim by tagging her in a Facebook'
posting which the victim was notified of, is thus sufficient for pleading purposes to
establish a violation of the Order of Protection.

While I agree with the Court’s conclusions, I was somewhat surprised that there was no further discussion as to what constitutes a “communication” and whether tagging someone in a Facebook post falls under that definition. Because, as I’ve oft repeated, the online is an extension of the offline, it would have been helpful to examine the nature of the defendant’s conduct in order to ascertain how and why it constituted a “communication.” Similarly it would have been illustrative to provide examples of offline conduct that were somewhat comparable to the defendant’s alleged behavior.
Assuming that the defendant was aware that when she “tagged” the complainant in a post, the complainant would likely receive a notification (depending on her Facebook settings), then clearly the defendant understood that she was in essence sending a message to the complainant. This was especially so given that she not only “tagged” her but also included messages in the post directed specifically to the complainant. However, even if she had not included messages of that nature, it’s conceivable that simply “tagging” someone in a post might constitute prohibited communication.

Unfortunately, the court did not address this issue and instead simply concluded that the alleged conduct violated the order of protection. While the decision was arguably correct, it was devoid of useful guidance for other courts who will undoubtedly wrangle with similar issues in the future.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also 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 [email protected].