Posted by Nydia Streets of Streets Law in Florida Domestic Violence

If someone posts insults and character attacks regarding another person on his or her social media account, does this qualify as cyberstalking for purposes of obtaining a domestic violence injunction? The Florida Statutes define cyberstalking as “engag[ing] 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." This was at issue in the case Krapacs v. Bacchus, 4D19-641 (Fla. 4th DCA August 12, 2020).

The case stems from an injunction filed by a lawyer against her former boyfriend, alleging he committed domestic violence against her. The ex-boyfriend hired an attorney and the petition for injunction was denied. The lawyer then launched an attack online against her ex-boyfriend’s attorney, alleging he lied in the domestic violence proceedings. The ex-boyfriend’s attorney then hired his own attorney to help him sue the lawyer for defamation. Soon after, the defamation attorney became the target of the lawyer’s attacks. The lawyer posted disparaging statements about the defamation attorney on social media, tagging the lawyer. One of her posts identified the vehicle driven by the defamation attorney. The lawyer also made a post indicating she was reaching out to the defamation attorney’s former clients to represent them in a malpractice suit against the defamation lawyer. The defamation lawyer testified to distress she felt upon being tagged in the lawyer’s posts, and that she had difficulty sleeping with headaches and stomach aches.

The trial court entered an injunction which specifically required the offending lawyer to remove all social media posts about the defamation lawyer; to cease posting about the defamation lawyer on social media about private matters that serve no legitimate purpose; and to limit her visits to her own office to once a week only to retrieve mail since she shared an office building with the defamation attorney. The lawyer appealed, arguing in part that the injunction imposed a blanket prior restraint on her free speech.

The appellate court agreed with the lawyer and reversed the injunction. The court held “[The lawyer’s] actions do not qualify as cyberstalking because they did not constitute a pattern of conduct composed of a series of acts over time evidencing a continuity of purpose. See § 784.048(1)(d), Fla. Stat. (2018); [The lawyer’s] act of retagging [the defamation lawyer] in her social media posts for four hours constitutes one instance of qualifying conduct under the statute. This conduct, by itself, is akin to an attempt to force unwanted speech upon [the defamation lawyer] and therefore ‘crosses the line' in terms of First Amendment protection.’ However, the other acts [the defamation lawyer] described are constitutionally protected activities and do not qualify as additional instances of repeated stalking.” (Internal citations omitted).

Regarding the First Amendment argument, the appellate court agreed the restraint on the lawyer’s posts was overbroad. The court held “A regulation of speech that ‘references’ [the defamation lawyer] is necessarily a regulation of the subject matter of that speech. The injunction in this case fully regulates and puts limits on any expression that relates to a particular subject, i.e., [the defamation lawyer]. As such, we find that the portion of the trial court's order prohibiting [the lawyer] ‘from posting [the defamation lawyer’s name] or any part thereof, on any social media or internet websites [and [[he lawyer]] shall take down all social media and internet posts that reference [the defamation lawyer], or any part thereof immediately’ is overbroad.

Obtaining an injunction against any form of domestic violence requires close examination of legal standards. Contact a Miami family law attorney for help with your case.