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Harassment by WhatsApp messages and SMS is not excluded

Harassment by WhatsApp messages and SMS is not excluded

Sometimes, we think that the use of instant messaging applications is the only inherent risk of encountering some crimes if we do not pay attention to the dangers of the internet. Well, this is only one side of the coin. With the new communication tools, it is, in fact, possible to commit crimes with the false belief that screen protection is sufficient to avoid the criminal fit of one’s behavior.

However, with the advent of new technologies and new tools available for lessons, there have been many clarifications from both the legislature and the judiciary in recent years. The first, on the one hand, was to modify some existing cases by providing the worst situations related to the commission of crimes by using ID or telematics tools, and on the other hand was able to fill some gaps by creating new cases. The Security Criminal Code is in line with current times. The judiciary, on the other hand, proved to be very harsh on behavior conducted through smartphones and social networks, and above all focused on all the circumstances in which the defendants allegedly absolved themselves of their criminal liability.

One of the most common hypotheses is the crime of harassment, which is well aided by the media. Moreover, in light of the Supreme Court’s recent sentence, escaping punishment is increasingly difficult.

1. Harassment and instant messaging

The crime of persecution is a violation provided by art. “Harasses or disturbs a person in a public place or in a public place, either by phone, for indecent exposure or any other criminal reason.“.

In the case of protected legal property, The indictment is intended to protect the rule Public peace public peace (Cos. Pen., Sent. n 22055/2013) Essentially, the silence of the injured person is implicitly protected by the protection of the public dimension in order to make the behavior punishable regardless of the victim’s wishes (Cos. Pen., Sent. n 10983/2011).

The objective component of the offense is any behavior that is objectively appropriate for harassing and harassing a third party and interfering in the personal life of others and the relationship life of others. According to the letterArt. 660 cb, Harassment needs to take place For grief or for another crime. The first indicates a “Arrogant intrusive attitude and continuous and inappropriate intervention in the field of freedom of others,As a result, the diversity of chaotic acts integrates the material elements that make up the crime. (Case. Criminal, Sent. N. 6908/2011). However, as for the second concept, it has in general and the rest of the other reprehensible causes associated with the particular injured person.

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The important thing to note is that there are no spatial limitations to the behavior because it does not have to be placed in the presence of the injured person’s body, but is specified by the same art. There is a hypothesis called Criminal Code 660, telephone harassment. Also, considering the technological development of recent years, restricting the concept of “telephone” to the use of traditional calls will be greatly reduced.

In 2013 the Supreme Court first rejected this solution Sentence number. 24670/2012, Sending pornographic images on MSN was not a hypothesis of harassment because it did not have the “aggression” required of a lawsuit, and the news came because the recipient actually directed the receipt. Same by accepting the contact. Well, this approach is now considered obsolete.

In light of the new tools that allow harassment-inducing acts, in fact, it was recognized in several subsequent rulings – including the recent Supreme Court ruling that will be examined below – that instant messaging should be considered for IT sites such as social networks and applications to find liability in accordance with Art. 660 The main point of Italian criminal law is that persecution is aimed at a specific person and is not aimed at the community.

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2. The recent sentence of the Court of Cassation

The Sentence number. 37974 of 22 October 2021 (Text below) The Cassation Court is a symbolic case of the evolution of the judiciary in relation to crimes committed by new generation instruments in order to modify the punishment for behavior in line with the evolution of technology.

The story begins with an appeal brought by Palermo against the GUP’s sentence pronounced after the abbreviated verdict, which convicted him of the crime of persecution in accordance with Art. 660 of Italian criminal law, for sending a large number of messages via WhatsApp to a municipal police officer, for harassing him for no innocent reason or out of anger.

The main issues of the judgment in question emerge precisely from both the basis and the main flaws of the applicant. First, he said, restrictions are mentioned in art. 660 of the Criminal Code is strictly limited to the concept of telephone communication and not to the use of instant messaging applications. Furthermore, the applicant believed that continuous communications sent through WhatsApp were not aggressive because the recipient had the right to block it, thus preventing him from receiving messages without sacrificing his communication freedom, changing the number and turning off the phone.

Now, in light of the reasons for the appeal, the court is very definite. As for the trace of questionable behavior to the rulesArt. 660 cb, Because the reference to “telephone media” in the law included text messages sent through landlines and mobile phones, and other similar means of communication, including new instant messaging tools, was considered unfounded by reasonable judges. For the second reason, at the end of an experimentControversial crime In light of the new communication mechanism, the Supreme Court later stated that – by consolidating the case charged by the applicant – the relevant element was first “Occupancy of methods used to reach the recipient”, And simply not “The latter has the potential to interfere with the already affected and perceived disruptive activity, or to prevent it from happening again, without damaging their communication freedom, excluding contact or undesirable users.”. In other words, according to Ermellini, sending messages via WhatsApp can no doubt integrate the crime of harassment into a phone call because the regulatory reference to the latter has to be adapted to new sites of daily use. But not only that, since it is established, the judgment-based data, if any, must be aggressive in the means used by the sender and without any detection of the possibility of blocking it by interfering with any contact. . This is for a fundamental reason: the crime of harassment does not have to be of a habitual nature and the behavior does not need to be repeated. As a result, even an unwanted interruption is enough, which alters the victim’s psychological state or daily habits, without detecting the presence of the “Black Contact” option in any way, which does not have a preventative function. The offense, rather than interfering with its functioning, is, in fact, already completed by an act of harassment.

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3. Results

The judicial orientation of the court regarding common crimes committed through the use of new technologies is straightforward, and it sometimes expects the intervention of the legislature. In fact, the so-called cyberstalking sentence sentences, for example, are based on paragraph 2Art. To 612 There is currently no crime of “cyberbullying” in harassment acts that explicitly provide an abusive situation, if committed through IT or telematic tools. Art. Criminal Code 660, as we have seen, explicitly refers only to telephone instructions, and adaptation to new technologies came with the court’s explanatory effort. This proves that the Supreme Court has adopted a tough and tough approach at the same time as it is timely. Rejection of various reasons given by defendants to escape punishment for crimes committed through new technologies and social networking and messaging applications. The pronunciations quoted are numerous Sentence number. 33219/2021 On the topic of slander by the “status” of WhatsApp.

Well, in light of this, two different ideas arise. First, knowledge of the Supreme Court’s rulings is fundamental, as it must have a significant deterrent effect, proving just how difficult it is to escape punishment for crimes committed on the web today. The second, on the other hand, is about the need for the legislature to take action to fill in the remaining gaps by taking a note from the Supreme Court’s explanatory measures in order to link the clear and updated legal provisions with Nomobilactic. The function of the court.

Criminal case, judgment no. 37974/2021 >> Download PDF Text

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