Appeals Court Affirms Harassment Order Based on Vague Testimony of Indirect Contacts

December 8, 2014 · by Venkat Balasubramani · in Content Regulation, Privacy/Security

This is a civil harassment case. Kwan and Murcia both worked at CVS but at different stores (both as managers). Kwan filed a request for a harassment restraining order against Murcia, alleging that he was cyber harassing her and texted her after her requests to stop.

[photo credit: Shutterstock/Memo Angeles – “Internet Troll Using a Computer”]

She claimed that Murcia posted Kwan’s LinkedIn profile to Murcia’s Instagram account with the following hashtags: #blackbitch, #joblessbitch, #bootedout, #kickedout, #gokillyourself. She also complained about Murcia’s acts of harassment while they worked together. It’s possible there is something lurking in the background, but the court does not mention anything about a romantic relationship or overtures between the two.

The court entered a temporary order preventing Murcia from contacting Kwan. At the hearing to make the order permanent, Murcia, who was represented by counsel, presented evidence that not only did Kwan fail to satisfy the elements necessary for a harassment order, following Kwan’s termination from CVS, he and his girlfriend had received offensive posts on their instagram accounts, and numerous calls from blocked phone numbers. Murcia also explained that his girlfriend was the one who posted Kwan’s LinkedIn profile. He also exchanged words with Kwan but denied threatening her. (Copies of text message exchanges between Murcia and Kwan were submitted with his opposition.)

Kwan argued that it was typical for Murcia to engage in harassment using his girlfriend’s account and he had engaged in acts of harassment numerous times through third parties. She said she believed the harassment would continue without a permanent order and had heard that Murcia said “he was not sweating the small stuff.”

This case may be reminiscent of Ellis v. Chan, the extortion letter website case from Georgia in one respect: Kwan’s complaint seems to be that Murcia is “talking about” her. Perhaps this is just vague phrasing from her or from the court, but preventing others from talking about you is not what anti-harassment laws are about.

The case also raises a Section 230 issue. To the extent Murcia’s girlfriend was the one who posted (what appears to be the most) offensive communiations, can Murcia be held responsible? (Compare with the Boston v. Athearn case from Georgia, saying that parents can be held liable for some Facebook activities of their minor children.)

The court also does not scrutinize very closely Kwan’s claims the underlying factual basis for the anti-harassment order. None of Murcia’s (or his girlfriend’s) communications can be construed as a threat. There doesn’t even appear to be any unwanted contact after Kwan unequivocally told Murcia to not contact him. The court uses Murcia’s CVS-related acts as the premise for Murcia’s supposed “course of conduct,” but that seems like a flimsy basis, at best. Perhaps it could support a workplace harassment claim, but that’s separate from whether it would support an anti-harassment order. (The fact that Kwan was fired and there’s no mention of Murcia’s relationship being terminated weighed slightly in Murcia’s favor.) The statute requires the trial court to find harassment by “clear and convincing” evidence but it’s tough to argue that the court made such a finding. The court appears to have thrown a bunch of vague complaints into the hopper, then reached the conclusion that Kwan is entitled to an order preventing Murcia from further contacting her.

As with other cases that do not involve a domestic relationship, this case boils down to whether we should be able to use anti-harassment laws as a way to prevent people from saying mean things about us. Perhaps repeated unwanted direct contacts can rise to the level of harassment, but that doesn’t seem to have occurred here. Unfortunately, there’s no discussion from the court about whether Kwan could or should have used tools available to her to block Murcia’s speech (certainly possible on Twitter and Instagram).

NB: Aaron Caplan, who was one of the amici in the Georgia case, wrote an article that explores some of the issues raised by cases such as this one: “Free Speech and Civil Harassment Orders“.

Case citation: Kwan v. Murcia, 2014 WL 6701963 (Ca. Ct. App. Nov. 26, 2014)

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