Article 172 ter Spanish Criminal Code: Stalking and the use of the image of another

Article 172 ter punishes insistent and repeated harassment which disturbs the ordinary course of the daily life of the victim, restricted to four forms of conduct exhaustively listed in the provision. Paragraph 5 separately punishes the use of the image of a person to place advertisements or to open false profiles.

Wording of Article 172 ter of the Spanish Criminal Code

Elements of the offence

1. One of the four forms of conduct exhaustively listed in paragraph 1. Behaviour falling outside that list is not covered by the offence.
2. Insistence and repetition. An isolated act, however distressing, does not satisfy the objective element.
3. The absence of lawful authorisation, which excludes surveillance and contact carried out in the exercise of a right or of a professional duty.
4. A result, namely the disturbance of the ordinary course of the daily life of the victim, which must be established and not merely asserted.

Defence strategy

Insufficiency of the pattern of conduct. The offence is built upon a course of conduct. Where the acts are few, spread over a long period or attributable to legitimate causes, the requirements of insistence and repetition are not met, and the file frequently supports no more than a slight coercion or a matter of an administrative nature.

Absence of the required result. Paragraph 1 requires an actual alteration of the daily life of the victim. Evidence that the victim maintained routines, residence, employment and social relations unchanged undermines the objective element, which the case law does not presume from the conduct alone.

Lawful authorisation and exercise of rights. Contact required by the exercise of parental authority, by pending civil or employment proceedings or by a contractual relationship falls outside the provision. The documentary record of the reason for each contact is the material on which this line of defence is built.

Attribution of digital conduct. In the modality of paragraph 5, and in contacts made through communication media, the identification of the author requires more than the ownership of a device or of a telephone line. The absence of a forensic examination of the terminal, shared access and the possibility of impersonation are legitimate grounds of challenge.

Requirement of a complaint. Save in the cases of paragraph 2, the offence is prosecutable only upon complaint by the aggrieved person. The absence or withdrawal of that complaint is a procedural bar which must be examined at the outset of the proceedings.

• Article 172 CP: coercion
• Harassment and stalking defence in Spain
• Threats and coercion defence in Spain
• Cybercrime defence in Spain

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.