The Alicante Court of Appeals affirmed a six-month prison term for a man who allegedly violated a restraining order against his ex-partner on social media. The man sent his ex-wife a follow-up request on Instagram and a greeting on Facebook. Although the defendant acknowledged sending the request, he failed to fulfil it. According to his version, the software sends an automatic message to all of the individuals in his address book. However, the judges who heard the case determined that it was a premeditated attempt to violate the restriction.
A criminal court condemned him for these activities; the High Court affirmed the decision, and the defendant has now filed an appeal with the Supreme Court, asking to have the sentence overturned. The ruling emphasises that these infractions could occur both online and in person. The crime is committed if the defendant knows of the order and intends to violate it, regardless of whether the victim is in danger.
The ruling establishes that the defendant’s restraining order against his ex-wife was issued by a Villena court on November 27th, 2017 as a preventative measure for a crime of gender-based violence. Six months later, on May 20th, 2018, the victim got a follow request from the defendant’s Instagram account, followed two days later by a private greeting message on Facebook from the same account. Both the Criminal Court and the High Court determined that the defendant was fully aware of the prohibition’s validity and the consequences of breaching it.
Generic clicks are out of place
However, the defendant claimed that he was deceived by the platform’s suggestion of an automatic routine that took all of the contacts in his address book and that the system’s invitations were impersonal and generic. The judges did not believe this version: “There is no room for group messages or generic follow-up messages.” To send a message, click on the contacts you want to send it to.
The decision concludes that the defence’s exculpatory hypothesis of mass mailing has not been demonstrated. In this regard, it emphasises that the facts, excluding criminal liability, must be demonstrated by the person alleging them, and in the absence of an expert opinion to the contrary, it was established at trial that both social networking networks require follow-up requests to be made individually. As a result, the ruling is not regarded as valid, even as an explanation for transmitting messages by mistake or accidentally. In this regard, the Court remembers that the defendant has not offered any documentary reason for these mass mailings via social media. For all of these reasons, the Court sustains the Criminal Court decision, as requested by both the Prosecutor’s Office and the private prosecution.
The Court emphasised that “it is irrelevant” what the defendant’s aim was while making these requests. “It is irrelevant whether the perpetrator carries out the action with the intention of doing a favour, out of complacency, out of personal affinity or for any cause, or for an altruistic purpose, or out of hatred, revenge, envy or even socially valuable motives such as solidarity, friendship or love,” the ruling concludes, emphasising that the crime is committed when a valid order is deliberately violated.
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