If you are facing severe online abuse, you may be able to request that a judge issue a restraining order to prevent the perpetrator from further harassing you.
Restraining orders can provide a concrete remedy against persistent online abuse. If you decide to pursue a restraining order, be prepared for a multistep judicial process. You will need to present convincing evidence of both the abusive conduct and the harm brought about by the perpetrator’s actions. You will have to show that you will suffer irreparable injury unless a restraining order is issued to limit contact. Keep in mind that you will generally not be able to remain anonymous when seeking a restraining order, in part because the perpetrator will need to be informed of whom they are restrained from contacting.
Steps to Getting a Restraining Order
A restraining order is a court order requiring a person to do (or not do) certain things. In the context of online abuse, a restraining order prevents the perpetrator from further contacting and harassing the victim.
A temporary restraining order (TRO) is an emergency court order (aka pre-trial injunction) that applies for a limited time period to provide a person experiencing harassment a window of relief and give them time to seek more permanent legal solutions. Typically, after a TRO is granted, a more formal hearing will be scheduled by the court to give the person against whom the order has been issued the opportunity to present their case to the judge. After the hearing takes place, the judge may extend a TRO to a permanent restraining order to provide longer-term restrictions to contact.
The burden to show that a restraining order is necessary is placed on the individual making the complaint (i.e. the victim of online abuse). Generally when getting a restraining order, the individual making the complaint must show that immediate and irreparable injury, loss, or damage will result to them if the order is not issued. A victim seeking a restraining order based on the complaint of cyber harassment must demonstrate that the harasser’s conduct:
- is knowing or willful;
- is repeated (such that it forms a “course of conduct”); and
- places a reasonable person in fear for his safety or causes a reasonable person to suffer emotional distress.
Courts are very reluctant to ever issue a restraining order that limits speech. The plaintiff will be expected to show that they are seeking to restrain conduct – not speech.
If the perpetrator’s identity is unknown, a plaintiff can seek a restraining order against a “John Doe.” Once the case has been filed, the plaintiff can serve social media companies or internet service providers with a subpoenae to ascertain the perpetrator’s identity. After that, the plaintiff can amend the case to include the perpetrator’s real name.
In special circumstances, a judge may grant an ex parte restraining order, which does not require that the perpetrator be notified or present to defend themselves. In other words, the judge may issue the restraining order immediately without informing the other party or holding a hearing. A victim seeking an ex parte restraining order must show that they would suffer immediate and irreparable injury before the hearing. Additionally, the victim’s attorney must certify in writing that he/she has made efforts to give the other party notice and must state the reasons why notice should not be required.
Some states have special courts where there are streamlined ways to get a temporary restraining order on the same day, without needing an attorney. Some courts will only offer this relief when there’s an intimate relationship between the victim and the perpetrator.
The consequences of violating a restraining order vary depending on the type of order and where you file it. To be effective, a restraining order must have teeth (such as arrest). To understand whether it’s worth pursuing a restraining order, you’ll need to consult with a lawyer.
Do I need to know the person against whom I’m filing a restraining order?
While restraining orders are more common in cases of intimate partner violence, they can still be issued against an individual you do not know personally. Your standing to sue will depend on the law you are suing under and the location of the court where you are filing.
What’s the difference between a temporary restraining order and a permanent restraining order?
A temporary restraining order (TRO) is an emergency measure that a judge imposes without a full hearing. It only lasts until the judge conducts a formal hearing, at which time a more durable (or ‘permanent’) restraining order could be issued. The duration of a TRO varies considerably by jurisdiction and circumstances.
What evidence do I need?
If the victim is seeking a TRO against an online harasser, the victim must provide proof of repeated abuse (ie, “course of conduct”) and of the harm suffered in the face of such conduct. The victim should document any proof showing that the abuse would continue absent a TRO (for example, any communication from the perpetrator indicating intent to continue the abuse). For tips on documenting online abuse, see here.
What happens if a restraining order is violated?
If a harasser violates a restraining order, the victim should contact the police and/or the court. The perpetrator may be held in civil or criminal contempt depending on the type of restraining order. With civil penalties, for instance, the judge may re-impose the restraining order with more restrictive conditions. Criminal penalties would be achieved through prosecution and could include jail time for the perpetrator. You can find more information on the difference between Civil and Criminal Cases here.
For more detailed information, see this resource on restraining orders from Women’s Law.
- Documenting Online Abuse
- Assessing Online Threats
- Involving Law Enforcement
- Legal Basics 101
- Federal Laws
- State Laws
- Case Studies
- Legal Resources for Writers & Journalists
PEN America is deeply grateful to Covington & Burling LLP and C.A. Goldberg, PLLC Victims’ Rights Law Firm for providing pro bono feedback and insights on legal considerations for people facing online abuse.
IMPORTANT: THE INFORMATION PROVIDED ON THIS WEBPAGE IS OFFERED FOR EDUCATIONAL PURPOSES ONLY. THE INFORMATION DOES NOT, AND IS NOT INTENDED TO, CONSTITUTE LEGAL ADVICE, NOR IS IT INTENDED TO REPLACE THE ASSISTANCE OF A LAWYER OR LAW ENFORCEMENT.