In my law-review article on legal ethics and social media, I argue that lawyers have an ethical duty to understand social networking. In support of this premise, I pointed out that courts have held that a friend request sent via Facebook constitutes “contact” for the purpose of a no-contact order. Thus, a person subject to a no-contact order is prohibited from sending a friend request to the person protected by the order in the same way he is prohibited from calling her or approaching her in person.
A recent arrest in Iowa City, Iowa extends the concept even further. Last week, Paul Stoneking, 27, was arrested for violating a no-contact order for his Facebook activity–but not for sending a friend request. Instead, Stoneking is accused of having posted a comment on a picture of himself and the woman protected by the order. And here’s the real kicker–the picture was on Stoneking’s own Facebook page.
Stoneking admitted to having commented on the photos on his Facebook profile but explained that he didn’t realize the victim would be notified of his comments, reports the Eastern Iowa News. He thought that, because the victim was “no longer tagged in the photos,” she would not be sent notice of his comments. Not terribly unreasonable, I would argue.
However, depending on the user’s Facebook settings, the site may email her when she is mentioned in a comment, tagged in a picture, or whenever someone comments on those pictures. So, if you are Stoneking’s lawyer, how comfortable would you be advising your client about what will and will not result in “contact” with the protected individual? Unless you’re fairly proficient with the ever-changing Facebook terms of service and privacy settings, it seems to me that this is an area riddled with potential peril.