Ruling in the case People v. Fernino, Judge Matthew A. Sciarrino Jr. held that a "friend request" could still be considered a violation of a protection order entered in the case, regardless of the use of MySpace as an intermediary for the communication.
"While it is true that the person who received the 'friend request' could simply deny the request to become 'friends,' that request was still a contact, and 'no contact' was allowed by the order of protection," Sciarrino wrote. "It is no different than if the defendant arranged for any agent to make known to a claimant, 'Your former friend wants to communicate with you. Are you interested?'"
In the case, a 16 year-old named Melissa Fernino was barred by a family court from contacting a woman named Sandra Delgrosso or her two teenage daughters. The conflict between the parties reportedly resulted from a relationship between Delgrosso and Fernino's father.
Staten Island Family Court Judge Terrence McElrath issued orders of protection prohibiting Fernino from contacting Delgrosso or her daughters last year. In July, 2007, shortly after the orders were issued, Fernino allegedly sent separate MySpace friend requests to Delgrosso and both of her daughters.
Delgrosso reported the contact to the police, and Fernino was charged with three counts of second-degree criminal contempt for her alleged violation of the orders of protection. Fernino moved to dismiss the criminal contempt charges, arguing that even if true, the allegations did not support the charges.
In his decision, Sciarrino described use of the friend request feature, and found that despite its differences from means of communication the defendant could have employed there was no difference under the law between a friend request and any other form of barred communication.
"[T]he defendant used MySpace as a conduit for communication prohibited by the temporary order of protection issued by the family court," Sciarrino wrote, adding that the friend request was covered under the family court's mandate that the "[r]espondent shall have 'no contact' with Sandra Delgrosso."
Asked whether there was any potential liability for social networking sites when such situations arise, attorney Joe Obenberger of JD Obenberger and Associates told XBIZ that any liability is attached to the person violating the protection order, unless authorities "see some sort of aiding and abetting going on."
"With protective orders, all of the focus is on keeping [the respondent] away from the protected person," Obenberger said. "The important thing is not potential liability of the website — that's very, very unlikely to enter into the equation. The order is designed to prevent communication by any means or modality. It could be smoke signals, it could be semaphore, but [the respondent] can't just pretend that they aren't trying to circumvent the order by using some other agency or intermediary."
In other words, Obsenberger said, it is not the form or means of delivering communication that protective orders are prohibiting, it is the respondent's communication, itself, that is barred.
"The bottom line is that no matter what sort of communication the human imagination can devise, that communicative technique can be covered under a protective order," Obenberger said.