By Thomas G. Kopacz   |   January 30th, 2016

Violation of Protection Order Online: How Tagging A Victim On Facebook Or Social Media Platforms Can Land You In Jail!

This article is posted with permission from Attorney Tom Kopacz from an article he posted on January 19, 2016, on our firm’s Ohio Criminal Defense Law Blog…Get ready for a good read!

facebook protection order taggingClose your eyes for a moment and think back to a day when Facebook, Twitter, Instagram, Reddit, Vimeo, YouTube, and LinkedIn were not in existence.  Did you feel that sense of pure freedom from Social Media or did you freak out because you don’t know what you friend had for lunch today because you can’t see his food post?  Regardless, it is pretty crazy to think about our society without Social Media or Facebook at the grasp of our fingertips.

Millions of people connect every second of the day via Social Media platforms like Facebook.  By simply posting a picture or a status update you are connected with people across the world.  The world is truly your oyster when posting pictures of yourself sweating in the gym and captioning the picture with generic motivational sayings.

Another great aspect of saying what you feel through status updates or short videos is the ability to Facebook tag other individuals, groups of people, or organizations.  Not happy with your McDonald’s Big Mac??  Post it on Twitter, tag McDonald’s about your complaint/annoying Twitter post, and see what happens.  McDonald’s will respond!  This is pretty impressive and something that adults of the 1980s only dreamed of when their Big Mac meal fell short of expectation.  They had to call McDonald’s to put forth a complaint and were probably put on hold!  Do these kids today even understand what being put on hold even means?!?  Instant gratification is both a curse and a blessing.

This tagging ability on Facebook and Social Media is now getting individuals in trouble with the law.  Awhile back, I published Government Can’t Stop Tone Dougie’s Fresh Beats and Fly Lyrics: The U.S. Supreme Court’s Take On Facebook Threats and Facebook Fought The Law And The Law Won: Court Rules In Favor Of The Government When It Comes To Search Warrants For Your Private Facebook Account.  Both articles addressed how courts are trying to keep up with Social Media.  Since publishing those articles, more and more criminals are making the news for Facebook and other Social Media posts.  For example, a man had his parole revoked because he took a picture of himself holding a firearm and then posting said picture on his Facebook account.  That picture sent him straight back to prison.

Just recently I came across an article about a New York woman getting in trouble over a Facebook post targeting her sister-in-law.  Ms. Maria Gonzalez had a protection order against her to refrain from contacting her sister-in-law.   The protection order prohibited direct and indirect contact along with any form of communication either direct or indirect.  I guess good ole Maria did not believe that Facebook contact counted.

Maria posted that her sister-in-law was “stupid” and “You and your family are sad…you guys have to come stronger than that!! I am way over you guys but I guess not in ya agenda.”  And of course, Maria used the Facebook tagging mechanism to ensure that her sister-in-law would read the post.  The cops were then notified and Maria was charged with violating a protection order.  Maria’s stellar defense was that the protection order did not specifically mention contact via Facebook.  Not really buying that argument, the judge stated “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.”  Looks like Maria will be in some hot water.

But that is New York law!  We are in Ohio and our law has to be different….right?!?!  Not really and just like Maria, you can land in the County Hotel.

Ohio has various protection orders to protect victims from their assailants.  These include Domestic Violence Civil Protection Order (R.C. 3113.31), Domestic Violence Criminal Temporary Protection Order (R.C. 2919.26), Criminal Protection Order (R.C. 2903.213), Civil Stalking Protection Order (R.C. 2903.214), Civil Sexually Oriented Offense Protection Order (R.C. 2903.214), and Protection Order Against A Minor (R.C. 2151.34).

Each protection order for the most part carries the same language with regards to contact with the victim.  However, Ohio protection orders are pretty specific and after reading the language regarding contact with a victim, it is clear that there is zero contact with the victim.  Take a look at the language directly from a protection order below.

RESPONDENT SHALL NOT INITIATE OR HAVE ANY CONTACT with the protected persons named in this Order or their residences, business, places of employment, schools, day care centers, or child care providers.  Contact includes, but is not limited to, landline, cordless, cellular or digital telephone; text; instant messaging; fax; e-mail; voice mail; delivery service; social networking media; blogging; writings; electronic communications; or communications by any other means directly or through another person.  Respondent may not violate this Order even with the permission of a protected person.  (Original emphasis).

For clarification, the respondent is the person that the court issued the protection order against based on testimony.

As you can tell, Ohio lays out quite a bit of ways to violate a protection order.  Looking at Maria’s plight, I think she would have violated the terms of Ohio’s protection orders by tagging her sister-in-law in a Facebook post.

Let’s change up the facts a bit to see if Maria could have avoided her mishap by not tagging her sister-in-law.  Maria writes the same rant against her sister-in-law on her Facebook status bar, she then publishes this rant to her Facebook page, but Maria does not tag her sister-in-law to the post.  Would Maria still be in violation of the protection order?

To violate the terms of a protection order, the prosecutor must show that you were reckless in your actions. (R.C. 2919.27).  A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to be of a certain nature.  A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist. (R.C. 2901.22).  Say what?!?

Imagine a vehicle traveling down the Interstate at 120 MPH during the middle of rush hour.  This vehicle is zooming in and out of traffic with no due regard to safety.  The driver of this vehicle has a mental state that is reckless because even though does not plan on crashing hurting himself, other persons, or property, the circumstances of driving 120 MPH during rush hour produces the risk of harm.

Taking that mental state into account, I will play prosecutor.  That means that I will need to show that by Maria posting her rant against her sister-in-law on Facebook, without tagging the sister-in-law, Maria disregarded the substantial risk that her conduct would result in her sister-in-law seeing the Facebook post.  Based on the previous facts that Maria was able to tag her sister-in-law that tells me they are both still Facebook friends that have not blocked each other’s posts.  So there is a substantial risk that by Maria posting her Facebook rant that said Facebook rant will come up in the sister-in-law’s Facebook newsfeed.  Is this good enough?  I would argue no, but there is room for the prosecutor’s argument.

Let’s take it to the next step and assume that Maria and her sister-in-law are not Facebook friends or they blocked each other from seeing their posts.  Now, as the prosecutor, I need to show that Maria’s Facebook post would indirectly get back to the sister-in-law.  Maybe show that Maria is still Facebook friends with other members of the sister-in-law’s family and they would in turn tell the sister-in-law about Maria’s Facebook post.  I personally think this would be a stretch of the purpose of the protection order.

For example, say Maria in her Facebook post states “Tell my sister-in-law she is a real b****!” and Maria tags members of her family and other friends in the post.  Obviously Maria wants her family members and other friends to tell her sister-in-law what she thinks.  This can be construed as indirect contact.  Now assume that Maria posts “My sister-in-law is a b****!” and Maria does not tag any members of her family members or friends.  At this point I would argue that Maria is simply stating how she feels about her sister-in-law regardless of who sees it.

Tagging On Facebook Can Lead To Violation Of Protection Order. Think Twice Before Posting To Social Media Platforms

Looking at these examples it is clear that the law is catching up with Social Media and is adjusting to it accordingly.  With that said, try to refrain from putting your thoughts and feelings on Facebook or Social Media platforms.  Once your posted thought heads up to the Cloud, it is gone forever and might come back to haunt you later in life.  So eat your food instead of posting it online and actually workout in the gym instead of posting pics of yourself in the bathroom.  Or maybe I am in the wrong because I really like to eat food and I am over the whole workout thing.  A debate for next time I suppose.

Tom Kopacz is an attorney with the law firm of Holzfaster, Cecil, McKnight & Mues, in Dayton, Ohio. He is the Managing Editor of the Ohio Criminal Law Blog. Tom has a “wicked sense of humor” and his blog posts are both informative but very entertaining. Click here to read some of them! Tom is also on Facebook. Click here to visit his page!

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Thomas G. KopaczAbout The Author: Thomas G. Kopacz
Thomas Kopacz is an associate attorney with Dayton, Ohio, lawfirm, Holzfaster, Cecil, McKnight & Mues and the managing editor of the Ohio Criminal Defense Law Blog. He is also a member of the Association of Ohio Criminal Defense Lawyers.

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