Unsavory accusations, threatening private messages, and even revenge porn.
When conflict in divorce runs high, angry spouses may be tempted to use Facebook and other social media as a tool of retaliation.
But when inflammatory posts cross the line into cyber harassment, what are the legal consequences?
In a feature article for the New Jersey Law Journal, “Targeted Harassment or Just Venting Among Friends? Unraveling Social Media Tort Claims in Divorce,” Bari Z. Weinberger, founder of Weinberger Divorce & Family Law Group, analyzed criminal and civil repercussions for bad social media behavior in divorce.
According to her findings, finding justice for victims of cyber harassment is still very much a work in progress.
“In 2020, it may feel like Facebook and Twitter have been around forever. Looked at through a legal lens, however, and it’s clear that laws protecting individuals from cyber harassment and revenge porn are still very much new and evolving,” Weinberger wrote.
Are current legal remedies tough enough?
“The good news: When vindictive actions on social media rise to the level of criminal behavior, New Jersey has some of the strictest laws on the books,” says Weinberger.
“The not-so-good news: Civil remedies related to a spouse’s bad behavior on social media, including proving damages in related marital tort claims, continue to tread in uncertain waters.”
To understand the legal fallout, Weinberger described a scenario in which an angered husband began posting expletive-filled rants on Facebook detailing his wife’s drug use, infidelity and unfitness to parent.
The rage-filled husband went so far as to post nude photos of the wife, photoshopped with the word “slut.”
The wife also received a string of ominous private messages stating that he was watching her every movement.
“Legally, what can happen here?” Weinberger asked, noting that the example could have just as well been a vindictive wife doing the posting.
“In New Jersey, actions such as creating offensive posts or tweets, sending disturbing messages, or posting private content online may not be brushed away as just ‘venting.’
“In the scenario described above, it is possible that four crimes could be prosecuted against the husband: harassment, cyber-harassment, stalking, and criminal invasion of privacy,” she says.
In that state, each crime could result in fines and/or jail time, and form the basis for a domestic violence restraining order.
In these types of matters, targeted spouses can also file a civil claim called a “marital tort” to recoup monetary damages related to their spouse’s injurious actions.
Possible civil claims related to social media harassment could include intentional infliction of emotional distress, defamation (libel), a privacy claim known as “false light,” and invasion of privacy with photographs, films or videotapes.
Unlike the clear-cut nature of New Jersey’s criminal laws, Weinberger’s analysis revealed that proving a civil marital tort claim still falls into a gray area.
“Currently, there is an extremely high threshold for showing that social media posting inflicted emotional distress…the damaging behavior needs to ‘go beyond all possible bounds of decency,’ which is subjective and open to interpretation. More clarity is needed here.”
Until then, Weinberger says, “Divorcing spouses may want to establish a social media agreement that spells out what is acceptable to post, and what happens when posts and Tweets cross the line.”
As the saying goes, “an ounce of prevention is worth a pound of cure.”
About the author: Family law expert Bari Z. Weinberger Esq., is the managing partner of Weinberger Divorce & Family Law Group. Ms. Weinberger is also a published author and frequent media contributor on divorce and family law for local and national audiences.