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“It is forbidden to say ‘dirty black’ or ‘dirty Arab’, on the other hand ‘dirty bitch’ is allowed”

“It is forbidden to say ‘dirty black’ or ‘dirty Arab’, on the other hand ‘dirty bitch’ is allowed”
“It is forbidden to say ‘dirty black’ or ‘dirty Arab’, on the other hand ‘dirty bitch’ is allowed”

Moral harassment is condemned in the Penal Code. Thus, the alleged victim of harassment can lodge a complaint if: the harassment is repetitive, if it is abusive, if it affects their peace of mind; and finally if the harasser is aware of the harm he is doing to this victim.
The perpetrator convicted of this offense risks a fine or imprisonment.

But when it comes to cyberstalking, it is much more complicated. Why ? How to put an end to this impunity?

To talk about it on the CQFD set: Benjamine Bovy, lawyer specializing in criminal law at the Brussels bar, and Olivier Bogaert, commissioner at the Federal Computer Crime Unit.

Cyberbullying: how to end impunity?

Writings on the internet are assimilated to the public expression of an opinion, which, in Belgium, is protected. The offenses, that is to say the punishable opinions, which could be committed in this context fall under what is called the press offense, enshrined in article 150 of the Constitution. They are subject to special treatment: with some exceptions – calls for racial hatred and xenophobia – they come under the assize court.

Since 2012, the Court of Cassation in this context has explicitly affirmed that the criminal opinions published on the internet fall within the scope of press offenses. The advent of social networks has not changed much: recently, the judgments of the Court of Cassation go in the same direction. But convening an Assize Court is a heavy machine.

These are files that we see more and more, explains Benjamine Bovy. But it is very difficult to deal with them because these crimes have a privilege of jurisdiction, since they must be judged by an assize court. “It’s very complicated because there is a short limitation period, three months renewable“, whereas to assemble a court of assizes it takes nearly 6 months, adds the lawyer.”Practically, once the investigation is finished, the facts are prescribed, and that is a real problem.

For her, we must revise this article 150 of the Belgian Constitution, but not just any old way: not by eliminating the press offense, but by working on the other discriminating criteria:

The long journey of the investigation

In practice, the complaints lodged by victims of cyberstalking will be transferred to the Computer Crime Unit (CCU), which will have to carry out requisitions, among others, with the operators. But, explains Olivier Bogaert, there is a first problem that will arise: that of the retention period of data:

We are the technical laboratory“, specifies Olivier Bogaert, and sometimes, the magistrate in charge of the investigation can choose not to forward the file to the CCU.”If it is necessary, in relation to operators, service providers, to provide technical data, the latter intervenes. The operators who are installed on European territory, like Google, or Facebook, we do not have too many difficulties. But when we are at a distance, they will come and say: legally speaking in the United States, this behavior is not to be condemned. They will also use the terms of use “.

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