INFORMATION TECHNOLOGY
Supreme Court of Cassation: the crime of harassment can be committed via SMS and WhatsApp, but not via email.
Sending emails is not as disruptive as SMS or WhatsApp messages. This is the principle reiterated by the Criminal Court of Cassation in judgment no. 8231/2025, with which it rejected the appeal of a father sentenced to pay a fine of 200 euros. However, the Supreme Court reduced the penalty by a third, establishing that "the fact does not exist" with regard to the e-mails sent by the accused, while confirming the criminal relevance of the harassment perpetrated through the other two communication tools.
In the case at hand, the harassing behavior towards the child occurred within a situation of strong family conflict. According to the Supreme Court, the family context does not exclude the criminal liability of the parent pursuant to Article 660 of the Criminal Code. In fact, the fact that the harassment takes place in a private context does not exempt the perpetrator from legal consequences, especially if the actions cause significant disturbance to the victim.
The use of remote communication tools, which go beyond the traditional phone call to which the original rule referred, must be evaluated on the basis of their level of intrusiveness. The jurisprudence, therefore, distinguishes between different means of communication, attributing criminal relevance only to those that produce an effective and immediate invasion of the recipient's private sphere.
The Court of Cassation has clarified that sending an e-mail does not constitute the crime of harassment, since it does not possess the invasiveness typical of SMS or WhatsApp messages. Unlike the latter, in fact, e-mail is accessible only through a voluntary act of the recipient, who can choose to consult his or her mailbox when he deems it appropriate. In addition, emails do not generate immediate notifications on the recipient's device, unlike messages on smartphones, which reach the person wherever they are and often with real-time alerts.
Consequently, according to the judges, the nature of the emails does not lend itself to configuring the crime of harassment, unlike WhatsApp and SMS, which interrupt the recipient's ordinary activity with instant notifications, generating an immediate intrusion into his personal sphere.
Finally, the Supreme Court specified that the judgment on the merits did not commit an irregularity, excluding the particular tenuousness of the fact. However, he considered it necessary to correct the judges' arguments, who had based their decision on the alleged continuation of the crime. In fact, the Supreme Court has underlined that, since it is a case that punishes repeated conduct, the continuous crime cannot be configured in a technical sense, since repetition is already a constitutive element of the case itself.
In the case at hand, the harassing behavior towards the child occurred within a situation of strong family conflict. According to the Supreme Court, the family context does not exclude the criminal liability of the parent pursuant to Article 660 of the Criminal Code. In fact, the fact that the harassment takes place in a private context does not exempt the perpetrator from legal consequences, especially if the actions cause significant disturbance to the victim.
The use of remote communication tools, which go beyond the traditional phone call to which the original rule referred, must be evaluated on the basis of their level of intrusiveness. The jurisprudence, therefore, distinguishes between different means of communication, attributing criminal relevance only to those that produce an effective and immediate invasion of the recipient's private sphere.
The Court of Cassation has clarified that sending an e-mail does not constitute the crime of harassment, since it does not possess the invasiveness typical of SMS or WhatsApp messages. Unlike the latter, in fact, e-mail is accessible only through a voluntary act of the recipient, who can choose to consult his or her mailbox when he deems it appropriate. In addition, emails do not generate immediate notifications on the recipient's device, unlike messages on smartphones, which reach the person wherever they are and often with real-time alerts.
Consequently, according to the judges, the nature of the emails does not lend itself to configuring the crime of harassment, unlike WhatsApp and SMS, which interrupt the recipient's ordinary activity with instant notifications, generating an immediate intrusion into his personal sphere.
Finally, the Supreme Court specified that the judgment on the merits did not commit an irregularity, excluding the particular tenuousness of the fact. However, he considered it necessary to correct the judges' arguments, who had based their decision on the alleged continuation of the crime. In fact, the Supreme Court has underlined that, since it is a case that punishes repeated conduct, the continuous crime cannot be configured in a technical sense, since repetition is already a constitutive element of the case itself.
