The high court considers that the video platform was the place where he committed the crime and they assure that “the limitation of his access” is not disproportionate.
The Supreme Court (TS) has prohibited the creator of content ReSet from using the social network YouTube for the next five years after being convicted of recording himself offering a beggar cookies filled with toothpaste, which is added to the sentence of 15 months of prison that was imposed on him in 2019.
The ruling, delivered by magistrate Manuel Marchena, admits the appeal filed by the Prosecutor’s Office against the ruling issued by the Provincial Court of Barcelona, which partially revoked the ruling in the first instance.
It was in October 2019 when the fifth section of the Provincial Court issued a sentence confirming the sentence of 15 months in prison for a crime against moral integrity imposed by the criminal court 9 of Barcelona. However, the magistrates of the Provincial Court decided to rescind the ban on not using the aforementioned network for a period of five years.
In the opinion of the magistrates of the Supreme Court, who now agree with the lower court, this “deprivation of rights” is imposed “in a limited way and limited to the place where the crime was committed” which, they understand, is YouTube.
“The limitation to their access”, they maintain, “does not imply a disproportionate affectation to the faculties of the individual, as could result from the general imposition of a sentence that consists of the prohibition of access to the Internet, either in a generic way or in a prohibition of contracting with Internet access provider companies”.
In its argumentation, the high court reflects on what can be considered a “crime space” in a case of these characteristics. In this regard, they say, “the most recent experience” has shown “that social networks are not only the instrument for committing some crimes of a very different nature.”
“They can also be the scene in which the crime is committed, either during its entire development, or in the execution of only some of the elements of the type,” they maintain. And it is that, they add, “it could even be said that there are alternative formulas (…) to demonstrate that the crime scene does not have to be identified with a space necessarily locatable in a physical reality.”
According to the magistrates’ criteria, “it is also not ruled out, once the appropriate proportionality judgment has been verified, to consider that the YouTube channel, through which the distribution of the lacerating images captured by the accused was made possible, could be considered as a instrument of the crime and, therefore, subject to confiscation” in the Penal Code.
Understanding therefore YouTube as the site where the offense was committed, the magistrates establish the “prohibition of going to the scene of the crime for 5 years, which implies the closure for this time of the channel created” by ReSet, which also implies that he cannot “create others during this time”.
This decision of the Supreme Court has had, however, the particular vote of the magistrates Antonio del Moral and Javier Hernández, who have questioned “the argumentative effort” deployed by the Prosecutor’s Office to understand that YouTube can be considered as a physical place .
From his point of view, the Public Ministry makes use of an “argumentative arsenal, with authentic watermarks and philological juggling, which even evoke how the legislator uses the term space in the seat of insults and slander.”
However, both magistrates “deliberately” avoid getting involved in what they consider “a linguistic and semantic debate.” “It seems to us that this blurs what is at stake in the decision,” they add.
Despite this, the dissenting opinion issues a warning: “When it comes to determining the scope of criminal law, the limits that judges have when it comes to attributing meanings to the signifiers used by the legislator should not be neglected. And not only the one of the possible literal tenor but the one that is marked by the meaning that is obtained from the concrete language game where the signifier acts”.
From his point of view, the Internet “is not a place where the crime was committed — it is the means used to commit it — nor, of course, is it a place where the victim or their relatives reside.”
In his opinion “the penalty of prohibition to reside or go to certain places affects freedom of movement in a very limited way, hardly invasive”. However, they continue, “using that penalty to affect other rights –in this case, freedom of expression– involves label fraud.”
The original ruling condemned ReSet to compensate the beggar for moral damages with 20,000 euros, who ate the cookies that day, which caused him to vomit, dizziness and “emotionally he felt sad, crying”, as well as worried and afraid, according to what he pointed out. sentence.
On November 1, 2016, the youtuber accepted the challenge of one of his followers, which consisted of offering Oreo cookies with toothpaste filling, although “to more effectively capture the morbid attention of his followers” and get more income with his channel, he decided to focus it on a homeless person.
According to the judge, the defendant went to look for a beggar in the middle of the street in Barcelona, gave him 20 euros and a package of cookies that contained toothpaste, which this person ate, “with the intention of ridiculing and harassing said person , and in general to all people who are in a situation of extreme poverty”.
Thus, he posted the video on his YouTube channel with these images and said phrases in it such as: ‘This will help you clean your teeth’ and ‘The truth is that it feels good when you help a person’, with which he had a great repercussion in the social networks and in the media.
After deleting the video, on January 24, 2017, the youtuber went looking for the beggar with sleeping bags and blankets, offered him 300 euros so that he would not report him, and suggested spending the night with him to make a new video “to treat to ingratiate himself with public opinion”, although he was intercepted by the Guardia Urbana.
