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In the field of domestic violence, the prohibition of communication that is judicially imposed on the investigated as a precautionary measure or on the convicted person as a penalty, opens up new fronts of analysis as a result of the proliferation of social networks, as a means of communication in our society.
The prohibition to communicate with the victim, with their relatives or with other people determined by the judge or the court, It is a deprivation of rights, which is specified in prohibiting the offender to establish with the victims, written, verbal or visual contact, by any means of communication or computer or telematic means.
The great use of social networks, among them the most used in Spain are Facebook, WhatsApp, YouTube, Twitter and Instagram, has led to the increase in criminal offenses of the prohibition of communication through the aforementioned networks.
He peculiar functioning of social networks It complicates the task of determining whether there has been a violation of the prohibition on communicating with the victim. The Constitutional Court qualifies the message as: any set of signals, signs or symbols that are the object of a communication. Thus, there are several of the problems that appear with the crime of breaking the prohibition of communication in relation to the two most used social networks in our country:
In relation to WhatsApp:
- The "state" by WhatsApp. If the injured party puts a photo or a text as "status" and the investigated or convicted person views it, we are facing a crime of communication breakdown. This act is synonymous with sending a message to the injured party with the text of "I have seen your state ”. However, instead of typing it, an option is pressed that automatically records the display on the victim's phone. The injured party is disturbed if she sees that the investigated or convicted person has seen her “state”From WhatsApp and even the time you have seen it;
- participation in common groups. Although the message is not addressed to the injured party, the communication prohibition is understood to have been broken, because among the recipients of the message is the victim.
- To post on the wall of the injured and name or label its user constitutes breaches of the prohibition of communication. There is no doubt that when a photo or publication of the victim is published on the wall of the injured party, the prohibition of communication is violated. The same happens when its user is named or tagged on the wall of whoever holds the ban;
- give "I like it”To a post. The communication prohibition is also violated when the investigated or convicted person clicks the button "I like it”. With just one "click”, We are facing an act of communication, as explained in a previous post;
- groups or forums. Groups can be public, private or secret, and unlike what happens in WhatsApp, which groups are small, in this application groups can even reach a thousand people. This nuance is important because the effectiveness of the message is diluted and one could not speak of a breach of the communication obligation, unless a publication of the injured party was commented within the group or its user was mentioned in a publication;
- stories. This social network allows you to publish a photo or text with a duration of 24 hours. In this case, the application sends you a message indicating the people who have seen the story, and if the investigated or accused views the history of the victim, the prohibition of communication will be broken.
In conclusion, in all those cases of interaction of the investigated or convicted person through a social network, knowing that the message is going to reach the injured party, is incurring a crime of infringement of the prohibition of communication.
Perhaps, and in view of the growing use of social networks as a means of communication, it would be convenient for judicial decisions that impose the prohibition of communication to record expressly the impossibility of communication through social networks.