Leiden Law Blog

Even stalkers and sex offenders have a right to use social media

Even stalkers and sex offenders have a right to use social media

Last January, the Dutch newspaper NRC reported on a court decision that puts a year-long ban on social-media use by a man (H.) who has been digitally stalking and defaming his ex-wife (M.) on various social networking sites. H. had not responded to an earlier court order, which demanded him to remove slanderous texts from his online profiles. This time the court decided he had to completely remove his online profiles on Facebook, Hyves and Blogspot within two days, or else his ex-wife could act independently by requesting removal of the profiles from these social media providers. Stalking can have a devastating impact on victims and it is imperative to offer adequate means to stop it. Still, I have an unsettling feeling about this particular outcome. 

Interestingly in this very same month, a German court ruled that the Internet is a basic right,  and a US Court of Appeals found a state law that allows sex offenders to be banned from social media to be unconstitutional.  This state law’s aim is to protect minors from online sexual solicitation by adults on social networking sites. However, the court states: “[a]s such, the Indiana law targets substantially more activity than the evil it seeks to redress”. Moreover, there are “other methods to combat unwanted and inappropriate communication between minors and sex offenders”. Furthermore, the American Civil Liberties Union which filed the action put forward that indeed “the prohibition hinders legitimate, constitutionally protected online interactions with other adults when such communication is as common and necessary as the telephone was a few years ago”.  It is, certainly, true that increasingly communication takes place via social media and for many people it has become virtually impossible to imagine a world without them.

Obviously though, social media are different from telephone communications, because they’re not one-to-one but can potentially reach a very large audience and information – once out there – cannot (easily) be removed if spread virally. Unfortunately, social media are therefore very effective in making other’s people lives hell by constantly harassing them and publishing disturbing or vengeful information for the whole world to see. So, it’s quite understandable that courts are struggling to come to grips with these new technologies. Nonetheless, the US courts reasoning struck me as relevant for the Dutch case as well and points to a different outcome that may in fact be as effective but more in the spirit of fundamental rights law.

Online profiles are like a diary or a picture book. By removing a complete profile, H. will lose all kinds of other personal information – such as communications with friends, pictures, Facebook likes,  et cetera –  that isn’t in any way related to the case at hand. Moreover, it means giving up on a – potentially even quite extensive – online network of family, friends and acquaintances and being shut out from their communications on these social media. Both of these outcomes may violate the fundamental right of freedom of expression, when other – less intrusive – measures can achieve the same results. H. indeed argued that the measures would be disproportionate and to be sure the court had other possible choices. They could have opted to enforce the earlier decision  or to provide the ex-wife with a court order that would have allowed her to independently request the removal of the illegal information only, instead of H.’s complete online profiles. In effect, this was what M. wanted to achieve in the first place. I sincerely hope that the court decision will bring to a stop what must be an awful experience for M. and others close to her. However, we must also realize that the law has its limits in what it can do to solve complex social problems. Nor does either solution prevent H. from seeking other online venues to continue his harassment. A ban on social media, even for one year, is definitely a bridge to far though.

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