Crimes against privacy explained: what they are, regulation, types and penalties (2023)

Loscrimes against privacyare punishable acts that occur when carrying outactions to invade the privacy of a third partyviolating your right to privacy. The criminal types that are part of this crime are:discovery and disclosure of secrets.

How are crimes against privacy defined?

According to the legal Spanish dictionary, acrimeagainst privacy is a criminal offense thatthreatens himfundamental rightto privacy, through the seizure, modification, use or disclosure of data, communications or images of a person.

It must be taken into account thatThe mere fact of discovering a secret violating the privacy of the affected person already implies the commission of a crime, regardless of whether said information is subsequently disseminated or not..

Therefore, the discovery of secrets is a crime by itself, being the disclosure of secrets a more serious conduct.

Where are crimes against privacy regulated?

Crimes against privacy are regulated in Title X (crimes against privacy,Right to self-imageand theinviolability of domicile) of thePenal Code, Chapter I (of the discovery andrevelation of secrets), articles 197 to

Evolution of the right to privacy

HeRight to privacyit did not have the systematic character it has now. For this reason, there was only talk of privacy in some criminal type related to freedom or security.

The legislator in 1995 considered it opportune to gather some classic criminal offenses together with other new punishable acts. It was then the first time that a Penal Code dealt with matters related to the most private sphere of individuals.

Article 18 of the Spanish Constitutionrecognizes thelegal goodprivacy as a fundamental right, linked to the right to develop personality. Regarding the criminal field, it is understood that privacy provides certain areas of privacy, which exclude the possibility that third parties may interfere.

1. The right to honor, to personal and family privacy and to one's own image is guaranteed.

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Article 18.1 of the Spanish Constitution

In the first place, there is talk of a harmonious right to the personality of the individual.

As soon as he is talked about without unnecessary or harmful interference, he connects with what is the dignity of the person of thearticle 10 of the Constitution. From this point of view, it allows an interpretation in accordance with the free development of personality, privacy and international texts.

Areas in which the right to privacy is developed

This right to privacy is developed in two areas:

Powers to avoid third parties in the private sphere

One speaks of faculties in a negative sense becauseattacks on privacy are attacks on the maintenance intact of certain areas of privacy of a person. This space of freedom is recognized without the presence of third parties for the free development of the personality.

Therefore, the Penal Code recognizes the ability to reject interference in this restricted area.

Powers of protection against third parties

The development of privacy law and new technologies has given rise to another area in which the subject has positive faculties when acting. The legal system exercises acontrol over data that may affect a person. It is the right to request permission to use personal information.

In Spain the firstjudgmentthat began on this path of positive powers of data protection was the 254 of July 20, 1923. Although theConstitutionhe would not contemplate it, heconstitutional Courtfrom that moment on, it accepted that dimension, which is developed in the Organic Law on Data Protection of 1929.

It is the most immediate consequence of this control of information, which is punishable by criminal sanctions from then on.

What are the punishable conducts that cause a crime against privacy?

Basic type of the crime of discovery and disclosure of secrets

The basic type of this crime is included in article 197.1 of the Penal Code. This preceptpunishes whoever seizes letters, messages or other documents, or intercepts communications, with the aim of discovering secrets or violating the privacy of the victim without their consent.

Within the interception of recordings and clandestine audiovisual control, the use of technical or technological elements for listening, recording or transmission of images, sounds, or any other type of communication is punishable.

For this basic type are establishedsentences of one to four years in prisonand a fine of one to two years.

Whoever, to discover the secrets or violate the privacy of another, without their consent, seizes their papers, letters, email messages or any other documents or personal effects, intercepts their telecommunications or uses technical devices for listening, transmission, recording or reproduction of sound or image, or any other communication signal, will be punished with prison terms of one to four years and a fine of twelve to twenty-four months.

Article 197.1 of the Penal Code

Crime of discovery of secrets in electronic support

Article 197.2 of the Penal Code punishes theseizure, use or unauthorized modification of stored confidential, personal or family datain computer media, and whoever accesses said data with the aim of altering them or causing harm to the owner or a third party.

For these behaviors are also establishedsentences of one to four years in prisonand a fine of one to two years.

2. The same penalties will be imposed on anyone who, without being authorized, seizes, uses or modifies, to the detriment of a third party, private data of a personal or family nature of another that is registered in files or computer, electronic or telematic media, or in any other type of file or public or private record. The same penalties will be imposed on whoever, without being authorized, accesses them by any means and whoever alters or uses them to the detriment of the owner of the data or a third party.

Article 197.2 of the Penal Code

Dissemination, disclosure or assignment of secrets to third parties

Article 197.3 regulatesof the aggravated typesof the two previous cases.

The first of these aggravated types is punishable byprison sentence of two to five yearsand who, after committing any of the previously analyzed assumptions of discovery of secrets,also disseminates, reveals or transfers to third parties the information discovered.

The second of the assumptions punishes withpenalty of one to three years in prisonand a fine of one to two yearsto anyone who participates in the dissemination of secrets, knowing their illegal origin, even if they did not participate in the discovery. In the event that the person disseminating the information was unaware that it was a secret discovered without the consent of the victim, it would not be a crime.

Therefore, in these two aggravated types, the disclosure of secrets is penalized regardless of whether or not one has participated in their discovery.

Aggravated crimes against privacy

The Penal Code regulates how conductsespecially seriousof discovery and disclosure of secrets andpunishable by three to five years:

• When the perpetrators of the facts are the persons in charge or responsible for the records or computer media.
• When they are carried out through the use of personal data of the victim without authorization.
• When the violated secrets affect sensitive data in need of special protection, such as those referring to ideology, religion and beliefs, health, racial origin or sexual life.
• When secrets that affect minors or people with disabilities in need of special protection are violated.
• When acting for profit.

Considering the literality of the Penal Code, we will highlight belowwhat behaviors are declared punishablefor each precept:

[...]

4. The events described in sections 1 and 2 of this article will be punished with a prison sentence of three to five years when:

a) Are committed by the persons in charge or responsible for the files, computer, electronic or telematic supports, files or records; either

b) are carried out through the unauthorized use of personal data of the victim.

If the reserved data has been disseminated, transferred or revealed to third parties, the penalties will be imposed in the upper half.

5. Likewise, when the facts described in the previous sections affect personal data that reveal ideology, religion, beliefs, health, racial origin or sexual life, or the victim is a minor or a person with a disability in need of special protection, the penalties provided for in its upper half will be imposed.

6. If the facts are carried out for profit, the penalties respectively provided for in sections 1 to 4 of this article will be imposed in the upper half. If they also affect data mentioned in the previous section, the penalty to be imposed will be imprisonment from four to seven years.

Article 197 of the Penal Code

Dissemination of recordings or images obtained with consent

Section 7 of article 197 is in charge of regulating a particular case within the disclosure of secrets. Specifically, punish withimprisonment from three months to one yearo fine of six to twelve monthsto anyone who disseminates recordings or images of a private nature that were obtained with consent without the authorization of the affected person.

In addition, the penalty will be imposed in its upper half when the perpetrator maintains or has maintained a sentimental relationship with the victim, when there is a profit motive, and when the victim is a minor or person with a disability in need of special protection.

In this case there is no discovery of secrets, since the affected person has voluntarily given his consent for the author to have at his disposal recordings or images belonging to the private sphere.There is disclosure of secrets because, under this assumption, the victim does not authorize their dissemination.

This criminal type is especially relevant for those recordings or images of a sexual nature that the affected person voluntarily decides to share with a person, and this person, in turn, and without the consent of the victim, disseminates to third parties.

7. Any person who, without the authorization of the affected person, disseminates, reveals or transfers to third parties images or audiovisual recordings of the one that he had obtained with his consent at a home or in any other place out of sight of third parties, when the disclosure seriously undermines the personal privacy of that person.

A fine of one to three months will be imposed on anyone who, having received the images or audiovisual recordings referred to in the preceding paragraph, disseminates, reveals or assigns them to third parties without the consent of the affected person.

In the cases of the preceding paragraphs, the penalty will be imposed in its upper half when the acts have been committed by the spouse or by a person who is or has been attached to him by a similar affective relationship, even without cohabitation, and the victim was a minor. of age or a person with a disability in need of special protection, or the acts were committed with a lucrative purpose.

Article 197.7 of the Penal Code

Disclosure of professional secret

A particular case of crimes against privacy is found in article 199, which refers to thedisclosure of other people's secrets of which the offender has knowledge by reason of his tradeor employment relationship. This conduct is punishable byone to three years in prison.

In the event that personal secrets obtained by your profession or trade are revealed and,In addition, the professional fails to comply with his obligation to keep confidentiality or reserve about the informationwill be punished withprison sentence of one to four years, a fine of one to two years, anddisablementto practice said profession for a period of two to six years.

This criminal type is of special relevance for those professions where there isprofessional secret, such as lawyers, private investigators or doctors.

1. Whoever reveals other people's secrets, of which they have knowledge by reason of their trade or their labor relations, will be punished with a prison sentence of one to three years and a fine of six to twelve months.

2. The professional who, in breach of his obligation of confidentiality or confidentiality, discloses the secrets of another person, will be punished with a prison sentence of one to four years, a fine of twelve to twenty-four months and special disqualification from said profession for a period of time. from two to six years.

Article 199 of the Penal Code

References

• Article 197 of the Penal Code
• Article 197 bis of the Penal Code
• Article 197 ter of the Penal Code
• Article 197 quater of the Penal Code
• Article 197 quinquies of the Penal Code
• Article 198 of the Penal Code
• Article 199 of the Penal Code
• Article 200 of the Penal Code
• Article 201 of the Penal Code
• Crimes against privacy in the Penal Code, Dexia Lawyers
• Is it a crime to record a conversation without consent?, Gerson Vidal