I. Introduction
Currently, the ways we communicate have changed significantly, especially in our personal sphere. Few people use letters or telegrams in their daily communications anymore; instant messaging applications and social networks have become the leaders in our interactions.
The purpose of this article is to explain how a possible communication on social networks can affect the crime of breach of sentence when the investigated or convicted person is prohibited from communicating with the victim or their family under Article 48.3 of the Criminal Code, which prohibits communication "by any means of communication or computer or telematic means, written, verbal, or visual contact."
Firstly, it should be noted that the basis for the prohibition on communication is to prevent the victimization of the victim, with the psychological harm that even mere communication could cause, and also to prevent cases where the prison sentence is suspended or the crime does not carry a prison term, so that the victim does not suffer contact with their aggressor.
At this point, there is no doubt about the commission of the crime of breach of sentence when explicit telematic or computer communication occurs, such as emails or messages to the victim through social networks like Facebook, Instagram, Twitter, etc., or through instant messaging applications like WhatsApp. But what happens in cases where there are doubts about whether the action should be considered communication?
Well, our courts have recently considered that simply "liking" a photo of the victim on Facebook (which could be extended to other social networks) should be considered communication, and therefore, such an action would lead to the commission of the crime of breach of sentence.
In this regard, the well-known Judgment No. 291/2017 of the Provincial Court of Madrid, dated November 20, 2017, with Mr. Vicente Magro Servet, the current magistrate of the Second Chamber of the Supreme Court, as the rapporteur, stands out, stating:
"It is well known that it would constitute a criminal act of breach of Article 468 CP for a person subject to a prohibition of communication to send 'How are you?' by any means of communication (...) Therefore, expressions such as a 'like' on a photo or comment by the profile owner posted on Facebook by the complainant would constitute an act of communication between the affected/convicted person by the communication prohibition 'by any means' and the harmed party, as this is precisely what the penalty aims to prevent: the convicted person communicating 'in any way' with the victim."
Similarly, Judgment No. 355/2016 of the Provincial Court of Barcelona, dated May 2, 2016, with Ms. María Jesús Manzano Meseguer as the rapporteur, states:
(...) "making 'like' comments on September 7, 2015 on photos that she posted. Therefore, given the operation of the Facebook social network, it is clear that the accused, by accessing the complainant's profile and giving it a 'like', did so with the intention and full knowledge that it would be received and seen by the complainant (...) he violated the prohibition of communication."
II. What should be understood by communication through social networks?
Our courts have ruled that a simple "like" on social networks constitutes communication, but what do our experts understand by communication?
In this regard, Mr. Roberto J. Juan Miranda, Senior Telecommunications Engineer at Arca company, provides a technical definition of communication and points out:
"Telecommunication is the transmission and reception of information through any medium, that is, any sending and receiving of signals, and today it is most commonly electromagnetic signals."
III. Should every action on social networks be considered typical?
As we have pointed out, case law is clear that a simple "like" should be considered communication; therefore, should any action on social networks be considered communication?
In this sense, Mr. Roberto Juan Miranda believes that "communication flows every second on social networks. If we have doubts about whether a simple 'like' should be considered communication, let's now think about what happens if instead of one, we receive a thousand 'likes' during the same day, all from the same sender. Wouldn't a person feel harassed upon seeing that there is an individual who has sent a thousand 'likes' to them? In my opinion, the communication from sender to receiver with a single 'like' is proven, and this action could generate a logical and reasonable fear in the receiver, which is what the communication prohibition aims to achieve. Therefore, I agree with the approach taken by our courts on this issue."
On the other hand, the advertiser and social media expert Mr. Alberto Cano González, Digital Account Director at SrBurns advertising agency, explains that:
"Social networks encompass a multitude of services, and not all can be considered communications, at least in the historical sense of communication. Social networks provide us with direct communication mechanisms such as comments on posts and private messages. On the other hand, they offer other services such as reactions, which serve to express a feeling towards content ('like,' 'love,' 'amazing,' 'sad,' 'angry'). The content will directly influence the type of reactions. In my opinion, a 'like' is not communication in the strict sense; for it to be communication, the user must seek direct interaction. In many cases, even this content can have a call to action by the sender encouraging 'likes,' shares, and comments, such as when a post is made to advertise a venue, a brand, etc.
Finally, it is important to note that social networks have understood how user interaction has evolved and provide us with various privacy mechanisms. The user is the final decision-maker regarding their content and who can access it, unlike traditional message reception channels—for example, you cannot block your home mailbox or phone to avoid unwanted letters or calls. Although this does not mean that the recipient should be forced to block the sender, it is important to recognize the differences in privacy management compared to traditional media.
I disagree with the courts' opinion because I believe they have not delved into the breadth of the meaning of social networks, staying on the surface in their analysis of digital communication. Each case should be analyzed individually, and we cannot conclusively state that any digital interaction has legal implications for the person who performs it, no matter how technically it may be called communication."
IV. Considerations and doubts about the issue
After analyzing case law and hearing from experts, in the opinion of this author, doubts arise about considering a mere "like" as an integral element of the breach of sentence type, despite technically considering any digital interaction as communication:
a) Possible reckless commission
Considering the subjective aspect of the unjust nature of the crime of breach of sentence, a defense argument could be the reckless commission of the action. Nowadays, most people use social networks via mobile phones and tablets with touchscreens of a few inches, so it is conceivable that cases could arise where the individual inadvertently touches the screen and gives a 'like' to a photo, or presses the WhatsApp video call button—a situation that notifies the receiver. Thus, the subjective requirement of the crime, which demands dolus, might not be fulfilled. This reckless commission, according to advertiser Mr. Cano, is practically known as the 'big finger syndrome.'
At this point, it could be argued that if there had been a genuine intention to communicate with the victim, a message would have been sent rather than just a 'like.'
b) Authorship issues
There is a possibility that either intentionally or recklessly, for example, a family member or friend momentarily manipulates your mobile or tablet and 'likes' a photo of the victim. In other words, with a letter or email, we would not have this possibility—unless someone intentionally signed that communication, impersonating your identity—but it can easily happen with social networks, especially when left open with the 'remember password' mode—it is possible that some readers have experienced cases where someone reacted to a photo on social networks without their authorization.
c) Change in the perception of communication
It is important to understand that communication has changed. Social networks have mechanisms to prevent receiving any communication from third parties. Note that it is not intended to shift the responsibility to the victim to self-protect against the aggressor, but as advertiser Mr. Cano points out, communication methods have changed, allowing to prevent any digital communication or reaction to content from people outside your circle of friends, unlike traditional media such as a mailbox or phone. This could be a factor to consider in the trial of the case.
Likewise, I share the opinion that our courts have only superficially analyzed this digital communication issue, given that the type of digital reaction and the type of publication made by the victim could be relevant. Should a 'like' on a post promoting a restaurant shared with the entire public of the social network receive the same legal treatment as 100 'likes' on 100 private photos with friends and current partner?
d) Awareness of the limits of the communication prohibition
If we adopt a broad view of the term communication and its effect on a possible breach of sentence, the active subject must be aware that they are violating the prohibition, that is, they must be aware that even the slightest digital interaction is prohibited. To achieve this, in my opinion, it should be explicitly stated in the resolution that any minimal digital reaction or interaction with the victim's profile or their family, where applicable, is prohibited, since the type requires dolus—knowledge and intent.
In conclusion, despite our courts almost automatically equating a mere 'like' to a breach of communication prohibition, there are issues surrounding this practice and social networks that should be considered, and our courts will have to develop these in the future.
Ignacio Montoro Iturbe-Ormaeche | Abogado
Fuente: http://www.legaltoday.com/practica-juridica/penal/penal/un-me-gusta-puede-salir-muy-caro
