Does "No Contact" Mean No Facebook Tagging?

Every state offers victims of domestic abuse and certain forms of harassment the ability to apply for a court order that restrains the abuser from harming or bothering his or her victim. States usually give restraining orders of that nature specific names, including protective orders, orders of protection, domestic violence restraining orders, and so on.

Specific terms of a restraining order are determined by a judge in each individual case. They may include orders to avoid having physical contact with the protected person, to stay a certain distance from that person’s home or place of employment, to direct no threats of violence toward the protected person, or to avoid contacting the person by telephone.

Broad “no contact” orders sometimes restrain individuals from having any form of contact with the protected person. Those orders typically bar contact in person, as well as contact by telephone, mail, or email. They may also prevent contact by a third person acting at the direction of the person against whom the order has been entered.

In most cases, the meaning of “contact” is obvious. In our electronic age, however, what it means to have contact is not always evident. That point is illustrated in a recent case in New York that asked whether tagging a Facebook profile constitutes contact.

The Gonzalez Prosecution

A New York trial court in Westchester County entered an Order of Protection against Maria Gonzalez. The order required Gonzalez to “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” with the protected party.

Gonzalez was charged with misdemeanor contempt of court after she allegedly violated the order by tagging the protected person on Facebook. A Facebook tag can be used to link the content on a Facebook user’s page to a photo or text on another person’s Facebook page. When someone is tagged on Facebook, they receive a notification of the tag that includes a link to the other person’s content. Facebook allows users to disable that feature if they do not want to be notified of tags.

Gonzalez allegedly created two posts that referred to the protected person. One post said “Stupid” and the other said “”You and your family are sad … I’m way over you guys ….” If Gonzalez actually created those posts, her decision to do so suggests that she wasn’t “way over” the protected person.

Gonzalez allegedly tagged the protected person’s Facebook page with each of her two posts. The protected person received notifications of the tags from Facebook. Gonzalez was charged with contempt of court based on that alleged violation of the “no contact” order.

Gonzalez’ attorney filed a motion to dismiss the criminal contempt prosecution. She argued that tagging another person’s Facebook page does not constitute contacting that person. The court disagreed.

The Court’s Decision

In a decision that denied Gonzalez motion, the court concluded that tagging someone on Facebook constitutes contacting them by electronic means, an action that the Order of Protection prohibited. The court relied on two other New York cases in support of its decision. In one case, a court found that sending a “friend request” on MySpace constituted electronic contact. In the other case, a court decided that sending a Facebook message was the equivalent of sending an email.

Sending a Facebook message is arguably different from tagging, since a Facebook message directly communicates content to the recipient while a tag links another person to content that appears on a Facebook user’s own page. Since Facebook notifies people that they have been tagged, however, it seems fair to conclude that tagging constitutes indirect contact with the tagged person. It is the electronic equivalent of asking a friend to tell the protected person that “Gonzalez said something about you on her Facebook page.”

Gonzalez’ lawyer relied on a case in which a court dismissed contempt charges against a defendant who contacted individuals who were on the Facebook “friends list” of a person the defendant had been ordered not to contact. The defendant did not violate the restraining order by contacting the protected person’s friends since no contact was initiated with the protected person. The court distinguished that case from the allegations made against Gonzalez because Gonzalez made electronic contact with the protected person, not just by accessing her Facebook page but by tagging it.

Would clicking a “Like” button on another person’s Facebook page constitute having contact with that person? Under the court’s reasoning, it might. The lesson to be learned is that people who are subject to “no contact” restraining orders should refrain from clicking on the social networking pages maintained by the individuals who are protected by those orders.