A Facebook ‘Secret Lovers’ post and possibly intercepted Facebook messages may be creepy, but they’re not ‘cyberstalking,’ says Second DCA in Horowitz v. Horowitz.
I happened to be doing some research today and stumbled across a case from last year that, because of its focus on a couple of Facebook posts, piqued my interest.
In 2013, a wife, Maureen P. Horowitz filed a petition for injunction against her estranged husband, Sammie Horowitz, for alleged domestic violence via cyberstalking in the Circuit Court in Polk County. After an evidentiary hearing, the court found that Mrs. Horowitz had presented sufficient evidence and granted the injunction.
Mr. Horowitz, the recipient of the injunction, appealed the decision to the Florida’s Second District Court of Appeals. On appeal, Mrs. Horowitz did not enter an appearance, and the appellate court ultimately overturned the injunction, ruling in the husband’s favor.
Incidentally, had Mrs. Horowitz presented an appellee’s brief, she would have had a greater chance at prevailing simply because she would have been able to argue her side of the case. However, it’s not surprising that she did not respond. Appellate practice can be incredibly nuanced and complicated, and, if she had retained an attorney, it would have cost her thousands. Similarly, it may have been too overwhelming for her to present a brief without an attorney.
In Florida, “cyberstalking” is a form of domestic violence against which a person may obtain an injunction. Florida statutes pertaining to domestic and repeat violence injunctions employ the following definition:
“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.
§ 784.048(1)(d), Fla. Stat.
Here, Mrs. Horowitz alleged that she was the victim of cyberstalking because, essentially, she believed that Mr. Horwitz had paid someone to hack into her computer, Facebook, or otherwise spy on her.
First, right after Mrs. Horowitz listened to Atlantic Starr’s “Secret Lovers” on her own personal computer in the privacy of her own home, Mr. Horowitz posted the same song on his Facebook page:
Next, Mrs. Horowitz also showed the court that Mr. Horowitz’s posts contained the apparent text of a private message conversation she had with a third party via her own Facebook account. Mrs. Horowitz testified that her private message conversation would have only been observable by accessing her personal Facebook account.
Third, Mrs. Horwitz testified that she had discovered a keylogger program, designed to track her computer use, installed on her personal computer. She also said that Mr. Horowitz told her he had someone watching her. Mr. Horowitz, however, denied installing the keylogger, and Mrs. Horowitz did not present evidence that he had done the installation.
Incidentally, although the court’s appellate opinion does not expound on this, the husband’s initial brief mentions that “all the information” his wife had alleged was obtained through a keylogger on her personal computer “was in fact obtained on their family computer that they shared and had keyloggers on previously,” and that, when Mr. Horowitz “reviewed the key logs it was evident that [Mrs. Horowitz] was having an affair.” He also implied that the affair had motivated Mrs. Horowitz “to fabricate these incidents in order to prevent Appellant from revealing her affair.” 2013 WL 7101921 *4 (Fla. 2 DCA Oct. 28, 2013).
This brings us to the legal analysis.
“Cyberstalking” requires communications “directed” to a specific person.
Here, the court determined that Mr. Horowitz’s Facebook posts did qualify as “cyberstalking” because they were not directed at her. Because Mr. Horowitz posted the information to his own Facebook page posts, and did not “tag” or mention Mrs. Horowitz, they were not “directed at a specific person,” as is required by the cyberstalking statute. § 784.048(1)(d). The court observed:
Unlike email communication, which this court considered to be cyberstalking in Rodriguez–Linares, 143 So.3d at 1071, posts to one’s own Facebook page are not directed at a specific person but are instead posted for all of the user’s Facebook “friends” to see, depending on the user’s privacy settings.
As to the alleged “hacking” of Mrs. Horowitz’s Facebook account, the court said that, although those assertions were “disconcerting,” “that behavior alone does not amount to cyberstalking as it is not an electronic communication.” (citing Young v. Young, 96 So.3d 478, 478 (Fla. 1st DCA 2012) (“Ms. Young’s acts in the case at bar, which consisted of changing her husband’s password, appropriating his emails, and including them in a filing in their divorce proceeding, do not amount to cyberstalking, because they were not electronic communications by her of ‘words, images, or language … directed at’ Mr. Young.”)).
Essentially, what it comes down to is “cyberstalking” is a very specifically written statutory definition, and, unless the behavior meets that exact definition, it likely does not qualify.
To qualify as “cyberstalking,” communications much cause “substantial emotional distress”
Here, the court found that the posts did not cause Mrs. Horowitz “substantial emotional distress.” § 784.048(1)(d).
She testified that the posts were “a matter of concern” to her and . . . “prevented [her] from having any privacy within [her] own home.” The record is devoid of any other mention of Mrs. Horowitz’s reaction to the posts. Because her testimony as to her reaction to the posts was “conclusory and vague” it was insufficient to show that she had been a victim of domestic violence. See Alderman v. Thomas, 141 So.3d 668, 670–71 (Fla. 2d DCA 2014) (reversing injunction where petitioner testified “that she feels ‘insecure and unsafe with’ [respondent] and that he scares her”).
Therefore, the court found that Mr. Horowitz did not engage in “cyberstalking” and overturned the injunction.
If you are interested in the case, it is Horowitz v. Horowitz, 160 So. 3d 530, 531 (Fla. 2d DCA 2015).
What else could Mrs. Horowitz have done?
Obviously, it depends on her overall goals, as well as what really happened. Hypothetically speaking, however, if, indeed, she were the victim of hacking, she may have been able to seek relief under the Electronic Privacy Act, if she could prove the intentional interception and acquisition of communication through an electronic device. But that is a subject for another blog.