Cyberstalking: When Digital Obsession Becomes a Crime

The internet has facilitated new forms of harassment that can be as devastating as physical stalking. The crime of stalking, introduced in 2015, punishes those who repeatedly and unduly insist on contacting another person, seriously altering the development of their daily life.

It's Not Love, It's Harassment

Sending hundreds of WhatsApp messages, creating fake profiles to contact after being blocked, or monitoring someone's location via spyware are typical behaviors. What matters is not the content of the messages (which may not be threatening), but the obsessive reiteration and the ability to restrict the victim's freedom.

This is the feature that most often surprises people: each individual message may be perfectly polite. A "good morning" is harmless; the three-hundredth "good morning" after the recipient has blocked the sender on every platform is part of a pattern of harassment. The law looks at the conduct as a whole, not at each message in isolation.

Elements of the Crime (Art. 172 ter CP)

For conduct to fall under Art. 172 ter CP, the prosecution must establish three things:

• Insistent and repeated conduct: an isolated episode is not enough; there must be a sustained pattern. Typical forms include watching or pursuing the person, seeking physical proximity, attempting contact through any means of communication or through third parties, and misusing their personal data.
• Absence of legitimate authorization: the contact is unwanted and the perpetrator persists despite that.
• Serious alteration of the victim's daily life: this is the legal core of the offense. Changing a phone number, closing social media accounts, altering routes and routines or living in fear of every notification are the kind of disruptions courts look for. Mere annoyance or discomfort, without a real impact on daily life, does not cross the criminal threshold.

This last element is where many cases are decided: the same behavior can be criminal or not depending on the actual effect it had on the life of the person targeted.

Digital Evidence

The reason is simple: simple screenshots are easy to manipulate and easy to dispute, and messages can be deleted remotely by the sender on many platforms. Certifying the conversations while they are still visible —through a notary or a trusted certification service— fixes their content and date before they can disappear. It is equally important to preserve the original devices and not to delete the conversations, however unpleasant they are: the complete thread, with its timeline, is precisely what demonstrates the obsessive reiteration that defines the offense.

The Defense Perspective

Accusations of cyberstalking also require rigorous analysis from the defense side. The usual lines of defense follow the elements of the offense:

• No real reiteration: a handful of messages, or contact spread over isolated occasions, may not amount to the insistent pattern the law requires.
• Mutual communication: if the conversation flowed in both directions —replies, renewed contact initiated by the complainant— the picture of unwanted, persistent contact weakens.
• No serious alteration of daily life: the defense can demand concrete proof of the disruption claimed, not merely the assertion of it.
• Authorship: in cases involving fake profiles or anonymous accounts, it must be proven who was actually behind the account — a technical question that cannot be resolved by assumption.

Protective Measures

Alongside the criminal proceedings, courts can impose restraining measures adapted to the digital environment: prohibitions on approaching the victim and on communicating with them by any means, which includes messaging apps, social media, email and contact through third parties. For the person under investigation, scrupulous compliance is essential — any new contact, even indirect, worsens their procedural position. For the victim, these measures extend protection to the very channels where the harassment took place.