Individuals sometimes approach our firm after being “harassed” by someone, often times online, and are seeking information about their legal options, including the ability to obtain an injunction against the offending party. Similarly, because many injunction proceedings are filed without the assistance of counsel, individuals often contact us after being served with a petition for injunction that is without merit. The purpose of this blog post is to address, in general terms, the cause of action available in Florida for an injunction against cyberstalking, and what it takes to prove, or defend against, a cyberstalking action.
Pursuant to § 784.048, Fla. Stat., “[a] person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking . . . .” § 784.048, Fla. Stat. Section 784.048 defines “harass” as “engag[ing] in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” § 784.048, Fla. Stat. (emphasis added). Uncivil behavior that causes annoyance, or even distress, does not in and of itself amount of malicious harassment. Young v. Young, 96 So.3d 478 (Fla. 1st DCA 2012). Cyberstalking is a type of stalking, and is defined by § 748.048, Fla. Stat., 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.” § 784.048, Fla. Stat. (emphasis added). In other words, cyberstalking is harassment through electronic communications, and there must be a “course of conduct” directed at a “specific person” which causes “substantial emotional distress” and serves no “legitimate purpose.” Failure to allege or prove any one of these required elements may preclude relief under Florida’s cyberstalking statute.
–Course of Conduct. It is generally accepted that for the “course of conduct” element to be satisfied, there must be two (2) or more incidents, evidencing a continuity of purpose. Pickett v. Copeland, 43 Fla. L. Weekly D159 (Fla. 1st DCA Jan. 17, 2018). “Course of conduct” is defined as “a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose. The term does not include constitutionally protected activity such as picketing or other organized protests.” § 784.048, Fla. Stat.
–Whether a communication is “directed at a specific person.” This issue appears most often in the context of public forum postings, such as blogs, social media posts to a large group, or even posts to the public “wall” of a third party. Generally speaking, when statements are posted on electronic forums which can be viewed by others, and those statements are not specifically directed to a targeted individual, they are not “directed to a specific person” for the purposes of supporting an injunction. David v. Textor, 189 So. 3d 871(Fla. 4th DCA 2016); Chevaldina v. R.K./FL Mgmt., Inc., 133 So. 3d 1086, 1091–92 (Fla. 3d DCA 2014)(where comments are made on an electronic medium such as a blog to be read by others, they cannot be said to be directed to a particular person). That is not to say that communications with third parties are irrelevant for the purposes of determining whether a harassment is occurring; however, there must still be communications “directed at a specific person” for the conduct to be considered “cyberstalking.”
–Substantial Emotional Distress. It does not matter how much emotional distress actually occurred, if a reasonable person standing in the petitioner’s shoes would not have experienced severe emotional distress. Thus, the issue of emotional distress involves an objective, and not a subjective, inquiry. “In determining whether substantial emotional distress occurred, the courts look to the standard of a reasonable person in the petitioner’s shoes.” Leach v. Kersey, 162 So. 3d 1104, 1106 (Fla. 2d DCA 2015); TB. v. State, 990 So.2d 651, 654 (Fla. 4th DCA 2008) (standard to determine substantial emotional distress “is that of a reasonable person in the same position as the victim”); David v. Textor, 189 So .3d 871 (Fla. 4th DCA 2016) (reasonable person standard considers how a reasonable person standing in the shoes of the party would be affected); Scott v. Blum, 191 So. 3d 502 (Fla. 2d DCA 2016) (posts which may be embarrassing, causing loss of sleep and appetite, are not the same as causing substantial emotional distress even if the posts were false or embarrassing); Horowitz v. Horowitz, 160 So. 3d 530 (Fla. 2d DCA 2015) (allegations were too vague to support a finding of substantial emotional distress); Leach v. Kersey, 162 So. 3d 1104 (Fla. 2d DCA 2015) (no substantial emotional distress where a reasonable person standing in the shoes of the mistress of husband should expect a wife to be upset and contact her regarding an affair with the husband); Goudy v. Duquette, 112 So. 3d 716 (Fla. 2d DCA 2013); Jones v. Jackson, 67 So. 3d 1203, 1204 (Fla. 2d DCA 2011) (reversing injunction where a reasonable person would not have suffered substantial emotional distress over “threatening” phone calls and text messages and it appeared that petitioner himself was not distressed).
–Legitimate Purpose. “[C]ourts have generally held that contact is legitimate when there is a reason for the contact other than to harass the victim.” O’Neill v. Goodwin, 195 So. 3d 411, 413 (Fla. 4th DCA 2016). See also David v. Textor, 189 So. 3d 871 (Fla. 4th DCA 2016) (communications had legitimate purpose when sent to try to get petitioner to drop lawsuit ); Leach v. Kersey, 162 So. 3d 1104 (Fla. 2d DCA 2015) (Contact with mistress served legitimate purpose when wife was making contact to advise mistress to stay away from her husband); Alter v. Paquette, 98 So.3d 218, 219 (Fla. 2d DCA 2012) (Communications seeking repayment of loan were made for legitimate purpose); Goudy v. DuQuette, 112 So. 3d 716 (Fla. 2d DCA 2013).
If you need assistance with a Florida family law matter, contact our office at 305.222.7921 or [email protected], immediately, to schedule a consultation!
Robert Stone Jeffrey, Esq., is an attorney admitted to the Florida Bar in 2010, the United States District Court for the Middle District of Florida, the United States District Court for the Southern District of Florida, and the Supreme Court of the United States. Robert has experience handling complex and high asset family law disputes, and has authored chapters in various publications relating to Florida family law, as well as civil and commercial litigation. Robert has been awarded an AV Rating by Martindale-Hubbell (2017 and 2018), as “Peer Rated For Highest Level of Professional Excellence.” Robert was awarded a 10/10 rating by Avvo.com, and various client reviews can be accessed through that platform. See https://www.avvo.com/attorneys/33134-fl-robert-jeffrey-3341362.html. More information about Robert can be found at www.RSJLegal.com
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