Belgian Constitutional Court upholds cyberstalking provisions

Short summary

Belgian criminal law applies different criteria to stalking and cyberstalking. Notably, stalking can only be prosecuted if there is a complaint by the victim, which is not required for cyberstalking prosecutions. In addition, cyberstalking requires an intent to cause a nuisance to a correspondent, while stalking does not. After examination, the Belgian Constitutional Court ruled that these differences did not amount to an unconstitutional discrimination, and allowed the provisions to stand.

Details

The crime of stalking ('belaging' in Dutch, 'harcèlement' in French) is still a relatively recent addition to Belgian criminal law. Somewhat surprisingly, it is covered by two separate legal provisions:

• the generic crime of stalking is defined in article 442bis of the Criminal Code. Introduced in 1998, it punishes stalkers who 'know or should have known that their conduct would seriously disrupt the peace of the person involved', with imprisonment of up to two years and/or a fine of up to 1.650 EUR. The Criminal Code also specifies that prosecution is subject to a prior complaint of the person claiming to be stalked. This requirement of a complaint partially offsets the somewhat subjective nature of the crime; after all, it can sometimes be hard to determine what would 'seriously disrupt the peace' of any given individual.
• separately, there is a cyberstalking provision in article 145 §3bis of the Telecommunications Act of 2005. This provision, introduced in 2007, foresees the exact same punishment as for generic stalking. It punishes the 'use of an electronic communications network, service or means to cause a nuisance to his correspondent or to inflict damage', as well the deployment of any devices to (attempt to) achieve that same result.

The result is a bit strange, since behaviour covered by the Telecommunications Act will generally also be covered by the Criminal Code: the provision in the latter is entirely technology neutral, and therefore universally applicable. However, there are two important differences: cyberstalking does not require a complaint of any supposed victim, and it requires an intent to cause a nuisance to a correspondent.

In a case before the Criminal Court of Charleroi, a defendant prosecuted for cyberstalking without a complaint of the victim raised the objection that this was discriminatory: his prosecution, he argued, was only possible because he had been using electronic means of communication. In other contexts, the fact that his victim had not complained would have meant that his actions wouldn't qualify as stalking. Similarly, he noted that cyberstalking only applied if there was an intent to cause nuisance to correspondents, whereas stalking only required that he should have known that he would disrupt the peace of the victim. The Court of Charleroi decided to present the question to the Constitutional Court: does this difference in treatment between stalking and cyberstalking amount to a discrimination that violates articles 10 and 11 of the Belgian Constitution?

In its ruling (NL - FR), the Constitutional Court refers to the justification of the cyberstalking provisions, and notes that the goals are substantially different from generic stalking: while the generic stalking rules aim to protect the personal life of the victim, the cyberstalking provisions aim to protect users of telecommunications services, irrespective of any criterion of disturbing the peace or inpinging on personal life. Recalling that the rapid evolution of ICT meant that cyberstalking could also cause a harm on a much greater scale than traditional stalking, the Court ruled that it was reasonable for the lawmaker to require an intent to cause a nuisance for cyberstalking, whereas the definition of generic stalking was more oriented towards the subjective harm of the invidual victim. Ultimately, the Court found that the different criteria for cyberstalking and stalking were not discriminatory under the Belgian Constitution.

As a result, cyberstalkers will remain prosecutable even in the absence of a formal complaint of any victim.