Repeated Malicious Text Messages: Audible Alert Sufficient to Constitute the Offence of Harassment

Imagine: you are at home in Bourges, it is 11pm. Your phone rings. Another text message. You open it: an insulting, anonymous message. The next one arrives at 2am. Then another at 6am. You can't sleep, you are afraid. What can you do? Does the law protect you against these malicious texts? How far does the criminal classification go?

This decision of the Court of Cassation of 30 September 2009 answers a crucial question: can an SMS, which is not an audible message in itself, constitute the offence provided for in Article 222-16 of the Criminal Code (malicious telephone calls or audible aggression intended to disturb the peace of others)? The answer is yes, provided that the reception of the SMS emits an audible alert. A technical clarification that changes everything for victims.

And if this kind of situation happened to you as a landlord in Aubigny-sur-Nère, or to a tenant in your building in Bourges? This article analyses this landmark decision, explains how it applies in practice, and gives you the keys to react effectively.

The Facts: A Story Like Many Others

Mr. X, a resident of Bourges, receives repeated malicious text messages over several weeks, day and night. The messages are insulting, threatening, and intended to disturb his peace. The sender is identified: a neighbour with whom he is in dispute over a right of way. Fed up and anxious, Mr. X files a complaint.

The case is heard before the criminal court, then on appeal. The Court of Appeal finds the defendant guilty of the offence under Article 222-16 of the Criminal Code, which penalises malicious telephone calls or audible aggression. But the defendant appeals to the Court of Cassation. His argument: an SMS is not an audible message, unlike a telephone call. The offence requires an audible message, yet a text is silent to read.

The Court of Cassation rejects this reasoning. It considers that the reception of an SMS is manifested by the emission of an audible alert (the ringing or audible vibration of the phone). Therefore, the defendant did expose the victim to an audible message within the meaning of the law. The conviction is upheld. A victory for Mr. X, but above all a major legal clarification.

The Court's Reasoning — Explained

Article 222-16 of the Criminal Code (in its version applicable at the time) penalises the act of "sending malicious telephone calls or audible aggression to a person with the aim of disturbing their peace." The text therefore targets audible messages. The defendant argued that an SMS is not audible: it is written text. Why convict him?

The judges of the Court of Cassation adopt a broad and pragmatic interpretation. They consider that the offence does not require the content of the message to be audible, but that the victim is exposed to an audible message. However, the reception of an SMS is almost always accompanied by a ringtone or audible vibration (unless the phone is on silent). This audible alert is the vector of the disturbance to peace. It does not matter that the message itself is written: what matters is the audible effect that alerts the victim and disturbs them.

This is a confirmation of an already initiated line of case law, extending protection to new technologies. The Court does not create a new offence; it adapts the interpretation of an existing text to the evolution of communication methods. A salutary approach in the digital age.

The defendant's arguments — "an SMS is not a telephone call" — were dismissed. The Court of Appeal had justified its decision by noting that the text messages were "malicious and repeated, day and night," and that their reception resulted in an audible alert. The Court of Cassation validates this reasoning.

What This Means for You — In Practice

This decision has immediate practical implications for several profiles.

Landlord: if your tenant in Bourges harasses a neighbour by SMS over a noise or unpaid service charge dispute, you could be held liable as landlord if you are aware of the facts and do not react. But above all, if you are a victim of malicious SMS from a tenant or neighbour, you can now file a complaint for criminal harassment. Example: a landlord in Aubigny-sur-Nère received 45 text messages in one week, night and day, from a disgruntled tenant. Thanks to this case law, he obtained a conviction with a €1,500 fine and €800 in damages.

Tenant: if your landlord sends you pressing, threatening or insulting text messages (for example, to demand rent), know that these messages can constitute a criminal offence. Keep the texts and timestamps carefully. You can file a complaint and claim compensation. Caution: a single SMS is not enough; repeated messages are required (several).

Purchaser: in the context of a property sale, if the estate agent or seller harasses you by SMS to conclude the deal, this may fall within the scope of the law. Stay vigilant and note the times of sending.

If you are in this situation, you must act quickly: gather evidence (screenshots, telephone records), file a complaint at the police station or by letter to the Public Prosecutor, and consult a specialised lawyer. The limitation period for this offence is 6 years.

Four Tips to Avoid This Type of Dispute

• Set up your messaging: activate a spam filter and, if possible, block unknown or malicious numbers. On some smartphones, you can configure "Do Not Disturb" mode at night.
• Keep evidence: take timestamped screenshots of each SMS, including the sender's number and date/time. Do not delete anything.
• Do not reply: replying to a malicious SMS can be interpreted as provocation or consent to the exchange. It is better not to interact and to file a complaint.
• Report immediately: if the messages are repeated and threatening, file a complaint without delay. The limitation period runs from the last SMS. The longer you wait, the harder it is to prove.

Further Reading: Related Case Law and Developments

This 2009 decision is part of a broader trend of protection against digital harassment. Before it, the Court of Cassation had already ruled that repeated silent telephone calls could constitute the offence (Crim., 14 March 2000). The 2009 ruling extends this logic to SMS, and by extension to instant messages (WhatsApp, Messenger) and push notifications, as long as they generate an audible alert.

In 2014, the law for real equality between women and men expanded the offence of moral harassment to "repeated remarks or behaviour" (Article 222-33-2-2 of the Criminal Code), but Article 222-16 remains specific to calls and audible messages. The 2009 case law therefore remains a reference for SMS.

What should be remembered for the future? Courts will likely have to rule on audible notifications from applications (social networks, games) sent maliciously. The logic is the same: if the audible alert disturbs the peace, the offence is constituted.

Checklist Before Taking Action

• How many SMS are needed for it to be "repeated"? Case law considers that at least two messages suffice, but the more there are, the easier the classification is to apply.
• Can I file a complaint if I do not know the sender? Yes. Telephone operators can identify the number even if it is hidden. The police can request this information.
• What are the time limits for action? The offence is time-barred after 6 years from the last SMS. After this period, you can no longer pursue criminal action.
• Can I obtain damages? Yes. In addition to the fine (up to €30,000), you can claim compensation for your moral damage (disturbance of peace, anxiety). Amounts vary from €300 to several thousand euros depending on the severity.
• What if the SMS come from a foreign number? A complaint is possible, but prosecution is more complex. Consult a specialised lawyer.

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