The thin red line of restraining orders on social networks: when even WhatsApp ‘likes’ or statuses are used to harass
Social media is a dangerous battlefield for toxic relationships, which is why restraining orders also prevent communicating with the victim by electronic means. Neither by SMS nor by WhatsApp, nor by sending an email or replying to tweets. However, in the complexity of networks there are many ways of transmitting information and it is not always clear when the stalker is communicating with the victim and breaking the restraining order or simply using their own networks.
Is putting a ‘like’ is communicating with the victim? Get into your Instagram stories? What about changing the WhatsApp status with a message for the affected person to read? Here we tell you some cases and what the judges have determined. Complex cases where there is a thin red line between victim protection and freedom of expression.
What complex cases do we know?
Breaking a restraining order is punishable by between six months and one year in prison. In these cases, if there is communication between the harasser and the victim, it can be understood how to break the restraining order, by continuing to maintain fear and fear over the person.
In a January 2020 ruling, the Supreme Court ruled on “missed calls.” The conclusion is that although the call was not answered, it was registered and “the mere fact of calling, when it is possible to identify the origin, already supposes in those cases a consummate act of communication “.
There are many examples of ways bullies try to get in touch with the victim in “alternative” ways. Be it from using the concept of payments to visiting the LinkedIn profile so that receive the read notice.
As described by EscudoLegal, the SAP of Madrid nº655 / 2019 resolved a case around sending messages on Facebook, where it was alleged that the creation of a Facebook profile could be associated with anyone else. The judge determined that “such allegation is still a simple excuse and assumption worthy of a better cause since, on the one hand, the messages sent through Facebook refer to events previously experienced by the defendant and his sentimental ex-partner and, on the other On the other hand, there is no record that the accused has filed any complaint for an impersonation of his personal data in the aforementioned social network “.
No longer messages, too the “likes” are enough to be considered communication. According to SAP Madrid nº291 / 2017: “expressions such as a« like »to a photo or comment of the owner of a profile uploaded to Facebook by the complainant, would be an act of communication as it is between affected / convicted by the prohibition order communication “by any means” and the injured party, since this is what is intended not to happen with the sentence, that is, the convicted person does not communicate in any way with the victim. “
Cases such as the one resolved by SAP Murcia nº155 / 2019 determine that sending WhatsApp messages or photos is an offense. And from the SAP Cuenca nº 159/2013 a case was resolved of a Twitter user who created “an account in the name of lofe design with the username @ DIRECCION000 and on October 12 and 13, 2013, the measure being in force precautionary, he sent three messages to Araceli, one of which dated October 13, 2013, said “look who is following this account … that’s me! ! ! “, resulting in that said account only followed another opened also by the defendant in the name of “I would do it for you a thousand” and username @ DIRECCION001 in which 256 tweets had been published between October 7 and 14, 2013 referring to and addressed to Araceli as well as various photographs of him accompanied by this “.
On Instagram, another case of infringement pointed out by EscudoLegal is the one resolved by the SAP de Baleares nº133 / 2020 where it was proven that “the defendant Daniel, of legal age, with no criminal record, on 06.21.2019 through the Vibbo portal followed his ex-partner, Bibiana; later, on 10/14/2019, the defendant, through the Instagram application, with Shoemallorca’s profile, sent the aforementioned an emoticon, then sent her a message saying “Hi, I don’t know how this was sent, sorry”, the same day at night he sent her a friend request on Instagram “.
How to determine that the message is directed to that person
A particular example where there have been statements in various directions is the one of the changes in WhatsApp statuses. In 2016, the Provincial Court of Cantabria resolved a case where a headline declared “I’m going to set you on fire.” However, it was not proven that the defendant had sent any message to the victim to see that change.
This is how the judge described it:
“Nor does it enter within the logic and experience of using these applications, that the calls imply that the status of the WhatsApp is seen, being necessary to enter the profile of the specific number to see that status; which means that by said logic it cannot be inferred without further ado that the state set by the defendant was addressed to Mrs. Olga or that he forced her to see him with the calls. In the same way, it cannot be reached with the absolute certainty necessary in the criminal sphere, that this state was intended to threaten if it has not been proven that they were targeting Ms. Olga. “
In that case, it was determined that the status of WhatsApp (also applicable to an Instagram story, according to lawyer Gemma González Calvo) was not sent to the victim and it could not be understood that it violated the restraining order.
However, a recent ruling from the Provincial Court of Santa Cruz de Tenerife 17/2020 points in another direction despite the fact that the case is a priori similar.
From Lefebvre, the prosecutor Escarlata Gutiérrez describes the case, where the defendant changed his WhatsApp status by writing “I will tear your ridiculous and stupid family apart in a matter of seconds, I give you my word, it will be six months. Remember this.” A clear threat but that being a change in WhatsApp status, it moves to the dilemma of the case described in Cantabria. But on this occasion the Provincial Court establishes that there is a violation of the restraining order.
It was declared tb proven that this sentence was written by the accused with knowledge of the validity of the prohibition of communication with his former partner. Likewise, the content of these expressions is linked to the protected person, with the aim of altering their peace and tranquility.
– Escarlata Gutiérrez ⚖️ 💚 (@escar_gm) August 29, 2021
The sentence of the defendant’s WhatsApp status has a clear addressee and a new argument is introduced in the resolution: “posting a status is a message that is sent to all contacts on the phone (and that they are not blocked or excluded from seeing it) regardless of whether they actually enter the state to view them. “
WhatsApp itself allows us to establish who we want the states to reach, be all “my contacts”, “my contacts, except …” or “just share with …”. And as Gutiérrez points out, the state is shared with knowledge and will with all those contacts. And therefore there is communication with the victim.
The complexity of social networks is reflected in the resolutions
To argue its position, the Provincial Court relies on the Supreme Court ruling on missed calls. It is not the same case of the WhatsApp statuses, but it is the closest resolution of the Supreme Court on a similar case.
The position of the Supreme is that “no two-way contact, written or verbal, is required, therefore there is no need to find an answer. Neither are minimum limits to contact established, its existence being sufficient. What matters is that someone lets someone know something“.
In any case, being a matter in which there is disagreement on the part of the different PAs, some of them with acquittals and others with convictions, a ruling by the Supreme Court on the typicality or atypicality of this conduct would be interesting.
– Escarlata Gutiérrez ⚖️ 💚 (@escar_gm) August 29, 2021
When several judges adopt different positions, it is usually the position of the Supreme Court that ends up creating a sufficiently stable jurisprudence to coordinate future decisions. Nevertheless, in complex cases such as WhatsApp status they have not yet been pronounced. Something that would be “interesting,” according to Gutiérrez.
The complexity of social networks and the countless forms of communication causes these debates to exist at the legal level, where there is a fine line between what constitutes a crime or simply a legitimate use of freedom of expression. While in ways such as “likes” there seems to be a greater consensus, in the own profile changes such as WhatsApp statuses it is not so clear. Because these days we are all closely connected, to such an extent that this informative proximity is taken advantage of by stalkers to get messages to the victims, either in more direct ways or in more sinuous ways.
Imagen | Priscilla Du Preez