A missed call, a threatening message through the WhatsApp status or a ‘like’ on Facebook can be a crime if the sender is prohibited from communicating with the victim and uses these telematic means to contact her. This has been proven by judgments of different judicial bodies that, in recent years, have been broadening the concept of breach of these protection measures – very common in cases of sexist violence, only last year more than 20,000 were imposed– to adapt it to the possibilities offered by new technologies.
Although in many cases there is still no consolidated jurisprudence, several resolutions have understood that the fact that the Criminal Code, when there is a prohibition on communication, prevents the convicted person from communicating with the victim “by any means of communication or computer or telematic means, contact written, verbal or visual “encompasses all the communication possibilities offered by new technologies without requiring a two-way contact —that is, without the need for a response — nor that this contact has a specific duration. What does have to be proven is who the issuer is and that this communication is addressed to the victim.
“What matters is that someone makes someone know something,” says the judgment of the Supreme Court that, in 2019, considered missed calls to victims of gender violence a crime if the aggressor is prohibited from communicating with them. That resolution, of which Miguel Colmenero was the speaker, determined that the mere fact of making the call, when it is registered and it is possible to know who made it, supposes a consummate act of communication and “an attack on the security and tranquility of the person to be protected “. In that case, the aggressor accumulated another sentence of ten months in prison for the crime of violation when he was convicted in the first instance for making the aforementioned call to the victim in a resolution confirmed by the High Court.
“What the aggressor wants is to destabilize the victim. Many times he does not directly seek aggression or the end of the woman’s life – which also happens, unfortunately – but attrition through strategies that we could classify as psychological control violence. And new technologies are the perfect instrument for this “, says Concepción Torres, professor of Constitutional Law at the University of Alicante and an expert lawyer in gender violence. “It is surprising that sometimes that control is not seen as a message of violence in this broad sense of transgression of the norm,” adds Paz Lloria, a professor of Criminal Law at the University of Valencia, an expert in gender violence.
Although they have not reached the Supreme Court, other resolutions have considered that there is a violation of the penalty of prohibition of communication in other novel cases through social networks. For example, the Hearing of Santa Cruz de Tenerife confirmed in 2020 the sentence of three years in prison to a man who threatened his ex-partner – with whom he was prohibited from communicating – with “tearing up” his family through a WhatsApp status, a kind of section within the network messaging service in which you can post photos or videos with an expiration of 24 hours.
The judges considered in this case that this “public announcement” was made with “the intention of intimidating and damaging the feeling of tranquility and security” of the victim, who had “direct access” to its content although he could also have had news of it. “indirectly” through other common contacts. Likewise, the magistrates recall that in the ruling on missed calls, the Supreme Court established that the existence of a “contact” is “sufficient”, without the need for “minimum limits” to be established or for it to be “two-way”. , to consider the communication prohibition violated.
However, this is an issue subject to controversy and for which there were precedents that reject the possibility of committing the crime of infringement through messages on WhatsApp status. In 2016, before that judgment of the High Court, the Provincial Court of Cantabria annulled the sentence to one year in jail for breaking a sentence imposed in the first instance on a man previously convicted of mistreatment for putting the message “I’m going to set you on fire” on his WhatsApp status. In that case, the judges considered that the status of WhatsApp “is not directed at any specific person”, that “it is necessary to enter the profile of the specific number to see that status” and that, consequently, it cannot be inferred without more than that state was directed at his ex-partner.
Another different casuistry is that of the ‘likes’ in social networks such as Facebook or Instagram, which have led to several judicial decisions although they have not reached the Supreme Court and the doctrine has not been unified. The now magistrate of the High Court Vicente Magro wrote in a judgment of 2017, when he was a judge of the Provincial Court of Madrid, that “a mere ‘like'” on Facebook could constitute an infringement of the prohibition of communication by constituting a contact with the private profile of a victim on that social network, which “You have the right to be disturbed and disturbed.” In this sense, the sentence recalls that precisely what is intended with the prohibition of communication is that the convicted person does not communicate “in any way” with the victim.
Also the Audience Provincial of Palma de Mallorca It ruled in a resolution last year that sending a friend request through Instagram is “an act of communication” with which, in this specific case, the “contact” between the aggressor and the victim was “expressly” sought , with which he was forbidden to communicate. In this case, the judges confirmed a conviction for a continuing crime of brokenness by adding that contact to others, such as sending emoticons and messages through that social network.
Those mentioned are examples of the use of “a new instrument” —such as new technologies— to carry out “classic crimes,” says Lloria. “The aggressors use these forms of communication to provoke in the victims the feeling of restlessness, instability or anxiety that traditional psychological gender violence generates. The difference is that now they do it through these means, which generates the sensation that at no time are you safe and out of their control, “says Torres. In this sense, Lloria affirms that the damage is even greater when the event occurs through the digital medium due to diffusion, virality or the inability to establish the right to be forgotten. “It is not the same to tell a love affair than to show a video of a fellatio”, he illustrates.
This expert explains that, due to the type of penalty associated with these crimes, it is difficult to achieve a unification in the Supreme Court. “The decision often depends on the operator’s training in gender and technology and the clarity and specificity of the message. There are messages that are very clear threats, but the problem arises with more subliminals. Sometimes getting the proof is also difficult because there are to establish a causal relationship, “he adds.
Torres, for his part, maintains that when it is possible to prove that this action has generated uneasiness in the victim, it has made him change his pattern of behavior or his trajectory, it is easier to convince the judge or court that he fits into the criminal types of breaking, threats or harassment and convictions occur, although decisions in favor of victims are usually more common when there is repetition in the behavior of the aggressors. That is, when it is not the first time they threaten or violate a sentence. “The legal operators are adapting and we must see the specific case,” he adds.
Although there has been progress, the experts consulted agree that there is still little training on cybercrime and cybercrime among judges, lawyers, police … “This is something that is even more noticeable in those figures in which the gender perspective and all the attacks that women can suffer “, says Lloria. Torres agrees with the diagnosis and adds that, although the normative changes and the application and interpretation of the Supreme Court are very good, there is still a lot of influence on the Law or Psychology faculties, from which the professionals who make such relevant reports come in these processes. There is a long way to go to protect victims also in the digital environment.