“Of the discovery and disclosure of secrets”, is the title of the Chapter I, of the Title X, of the Book II of the Spanish Penal Code (CP). The Title X has for title, “crimes against the intimacy, the right to the own image and the inviolability of the domicile”, therefore all the crimes comprehended in such title, will affect some of the rights recognized in the article 18 of the Spanish Constitution (CE). Of course, its Chapter I is not an exception, in it, the legal good mainly affected is the intimacy, although it is also in charge of protecting others, the computer freedom or right to the informative self-determination and the right to the own image.
Article 197:
Let us see the different articles which are part of this Chapter I. It is a chapter formed by nine articles, being the first of them the article 197, which says:
“Article 197.
1. Who, for discovering the secrets or violating the intimacy of other, without its consent, takes its papers, letters, emails or any other document or personal belongings, intercepts its telecommunications or uses technical devices for listening, transmiting, recording or reproducing the sound or the image, or of any other signal of communication, will be punished with the punishments of imprisonment from one to four years and fine from twelve to twenty-four months.
2. The same punishments will be imposed to who, without being authorized, takes, uses or modifies, in prejudice of a third, reserved data of personal or family character of another which are recorded in files or computer, electronics or telematics media, or any other type of archive or public or private register. The same punishments will be imposed to who, without being authorized, accesses by any means to the them and to who alters or uses them in prejudice of the owner of the data or of a third party.
3. Will be imposed the punishment of imprisonment from two to five years if are spread, revealed or ceded to thirds the data or facts discovered or the images taken to which are referred the above numbers.
Will be punished with the punishment of imprisonment from one to three years and fine from twelve to twenty-four months, who, with knowledge of its illicit origin and without having taken part in its discovery, carries out the behavior described in the above paragraph.
4. The facts described in the points 1 and 2 of this article will be punished with a punishment of imprisonment from three to five years when:
a) Are committed by the persons in charge of the files, computer, electronic or telematic media, files or records; or
b) are carried out through the not authorized use of personal data of the victim.
If the reserved data have been spread, ceded or revealed to thirds, will be imposed the punishments in its superior half.
5. Likewise, when the facts described in the above points affect to data of personal character which reveal the ideology, religion, beliefs, health, racial origin or sexual life, or the victim is a minor of age or a handicapped person needed of special protection, will be imposed the punishments envisaged in their superior half.
6. If the facts are committed for the purpose of making a profit, will be imposed the punishments respectively envisaged in the points 1 and 4 of this article in its superior half.
If besides they affect to data of the mentioned in the above point, the punishment to be imposed will be of imprisonment from four to seven years.
7. Will be punished with the punishment of imprisonment from three months to one year or fine from six to twelve months who, without authorization of the affected person, spreads, reveals or cedes to thirds images or audiovisual recordings of it which it has obtained with its consent in a domicile or in any other place out of the reach of the gaze of thirds, when the spreading gravelly damages the personal intimacy of this person.
Will be imposed the punishment of fine from one to three months to who having receive the images or audiovisual recordings to which is referred the above paragraph spreads, reveals or cedes them to thirds without the consent of the person affected.
In the cases of the above paragraphs, the punishment will be imposed in its superior half when the facts have been committed by the spouse or by person who is or has been bound to it by analogous relation of affectivity, even without living together, the victim is a minor of age or a handicapped person needed of special protection, or the facts have been committed with purpose of making a profit.”
As we can easily observe, it is a complex article, not only due to its length, but also for its content. In it, we find various typical behaviors and various qualified subtypes, therefore the best, is to see separately their content.
Article 191.1:
Following the order proposed by the own article 197, the first typical behavior that we find is the established in its first point. Let us try to break it down, for analyzing the objective elements of the type: 1) To take papers, letters, emails or any other personal documents; 2) To intercept the telecommunications, and; 3) To use technical devices for listening, transmitting, recording or reproducing the sound or the image.
In the first of them, we have to determine the scope of the action of “taking”. According to the Dictionary of the Royal Academy of the Spanish Language, “to take” (the word which appears in the CP and which I have translated to “to take” is “apoderarse”, this derives from the verb “apoderar”) in its third meaning means: “to become the owner of something, to occupy it, to put it under its power.” There is no doubt that this means a change in the possession of the thing, though we cannot discard that such change is also carried out through a copy of the data, for example, through a picture, without existing a “real change” in the possession of them.
On the other hand, the personal belongings which can be taken by the active subject for fulfilling the objective type, are an open number, because, though the own article 197.1 mention some of them, as an example, later, this article leaves open the list saying that will be included “any other document or personal belongings”.
In this kind of behavior, the legal good protected is the intimacy of the owner of the taken belongings, though in the first point of the article 197 are blended the concepts of intimacy and secret. The right to the intimacy is protected as a fundamental right by the article 18.1 of the CE, being the jurisprudence of the Spanish Courts what has established its scope. For example, the Provincial Court of Logroño´s sentence number 205/2020 says: “The legal good protected in this penal type is the intimacy and though the idea of secret can be more broad, as knowledge only to the reach of a little, in reality they should be precisely linked to the intimacy since this is the protecting goal of the type, as points out among others the Provincial Court of Valencia´s sentence of 30 June 2010 (Rec 652/2009) quoting the Spanish Supreme Court´s sentence 66/2006 where is said that “the idea of secret in the article 197.1 CP conceptually cannot be disconnected from the intimacy: this “own and reserved ambit against the action and knowledge of the rest.”
And the Provincial Court of Leon´s sentence number 478/2023 says: “According to reiterated doctrine from the Constitutional Court, the right to the personal intimacy, as a derivation from the dignity of the persons (art. 10.1 of the Spanish Constitution (EDL 1978/3879)) implies “the existence of an own and reserved ambit against the action and knowledge of the rest, necessary, according to the guidelines of our culture, for maintaining a minimum quality of the human life (Spanish Constitutional Court´s sentences number 231/1988, 197/1991, 20/1992, 219/1992, 142/1993, 117/1994 y 143/1994), and preferably referred to the sphere, strictly personal, of the private life or of the intimate (Constitutional Court´s sentences numbers 142/1993 and 143/1994). For the concept of “secret” in these crimes has to be understood the concerning with the sphere of intimacy that is only known by its owner or by whom it determines. For distinguishing the typical behavior from the mere indiscretion is necessary that the communicated affects to the sphere of intimacy that the owner wants to the defend. For that reason, the content of the secret has been tried to be reduced to those extremes affecting to the intimacy which have certain legal relevance, being like this when is damaged the existence of an own and reserved ambit against the action and knowledge of the rest, needed -according to the guidelines of our culture- for maintaining a minimum quality of human life.”
The second of the typical behaviors, consists in the interception of the telecommunications. Like in the above case, let us see what the Dictionary of the Spanish Royal Academy says regarding the word “to intercept”. The meaning which more suits us, is the first: “To take something before it reaches its destination.” Therefore, in our case, it is referred to the interception of a message sent by a telematic way.
The CP´s precept does not make any reference either, to the concrete telecommunications which may be intercepted. Nevertheless, we can make a little effort in order to determine to which ones it is referred. Must be included, phone calls, emails, or text messages, always that are intercepted during the process of transmission. In this scenario, the legal good affected is the secret of the telecommunications, another fundamental right recognized in the article 18.3 CE, which is akin to the right of intimacy, but autonomous and with its own scope. According to the Spanish Supreme Court´s sentence number 3747/2020, this right: “authorizes its owner to maintain in secret its communications with its interlocutors, excluding any third.”
But, let us try to be more precise:
– Spanish Supreme Court´s sentence number 451/2021: “The right to secret is independent of the content of the communication, being necessary to respect it, though the communicated does not form part of the ambit of privacy (Spanish Constitutional Court´s sentences number 70/2002 of 3 April and 114/1984 of 29 November).”
– Provincial Court of Barcelona´s resolution number 3095/2021: “Likewise it has been stressed that the right to the secret of the communications protects not only the content of the communication, but also other aspects of it, as the subjective identity of the interlocutors, therefore is affected by this right either the handing over of the list of phone calls by the telephonic companies or the access to the register of outgoing calls and incoming calls recorded in a mobile phone (Spanish Constitutional Court´s sentences number 123/2002, 56/2003; 230/2007; 142/2012; and 241/2012; as well as the European Court of Human Rights´s sentences of 2 August 1984, case Malone c. United Kingdom, § 84, and, of 3 April 2007, case Copland c. United Kingdom, § 43).”
– The right to the secret of the communications guarantees the secret of an ongoing communication, Spanish Supreme Court´s sentence 3654/2020: “In that line is relevant some consideration which we draw from the Spanish Constitutional´s sentence number 70/2002 of 3 April: “…the protection of the right to the secret of the communications reaches the own process of communication, but finished the process in which the communication consists, the constitutional protection of the received is carried out in its case through the norms which protect the intimacy and other rights.”
The same idea is proclaimed by the Spanish Constitutional Court´s sentence 123/2002, of 20 May. Ended the communication, the constitutional protection of the communication received, escapes from the ambit of the article 18.3 of the Spanish Constitution and it passes to be protected by the right of intimacy (article 18.1 of the Spanish Constitution). This criteria has been followed, among others, by the Spanish Supreme Court´s sentences number 164/2002 of 27 June, 1647/2002 of 1 October, or 864/2015 of 10 December.”
– Provincial Court of Granada´s sentence number 725/2021: “It is reiterated the jurisprudence (the Spanish Supreme Court´s sentence of 14 June 2016 quoting others) that declares that the constitutional norm is aimed to guarantee the impenetrability of the communication by thirds (private and public) alien to the own communication; that there is no “secret” for whom the communication is aimed, nor does it imply a contravention of the envisaged in the article 18.3 of the Constitution, the retention by any means (included the recording) of the content of the message…Who records a conversation of another attempts against the right recognized in the art. 18.3 of the Constitution; on the contrary, who records a conversation with other does not incur for only this fact in a behavior contrary to the constitutional precept.” This is how has been understood by the Constitutional Court, for example in its sentence number 56/2003 of 24 March, excluding all damage or constitutional relevance derived from the recording and later use in trial of the recorded by one of the interlocutors. This is how has been also regarded by the Spanish Supreme Court (Sentence of 9 November 2001) though the recording had been carried out surreptitiously.”
This delimitation of the right to the secret of the communications (art. 18.3 CE), mainly derives those scenarios not comprehended within it, to the right of intimacy (art. 18.1 CE). Who records a conversation with other, being part of it, may damage the right to the intimacy depending on the content revealed, and a phone book will be protected by the right of intimacy too.
The last behavior consists in utilizing technical devices for listening, transmitting, recording or reproducing the sound or the image. According to the first meaning of the Dictionary of the Spanish Royal Academy of Language, “to utilize” means: “To make that something serves for a purpose.” About the goal, we will talk more later, but we already know that it is “to discover the secrets or violate the intimacy of other.”
In order to carry out, the listening, transmission, recording or reproduction of the sound or image, there is no close enumeration in the law either of devices which allows to make it, therefore we should understand, that any which may serve for this purpose, will fulfill the elements of the type.
The question that now arises is, what is the right affected by such behavior. In my opinion, the rights affected are various, the right to the intimacy, which we have already commented, the computer freedom or right to the informative self-determination and the right to the own image. Let us see the last two, since the first have already been studied:
– The right to the own image (art. 18.1 CE), Penal Court´s sentence number 8/2023: “As is established by the First Chamber of the Supreme Court, the right to the own image is a right of the personality, recognized as fundamental right in the article 18.1 of the Constitution, which attributes to its owner the faculty of disposing of the representation of its physical aspect which allows its identification and it enables it to determine what graphic information generated by its physical features may have public dimension. In its negative or excluding aspect, it grants the faculty of impeding the obtention, reproduction or publication of its own image by a third without the express consent of the owner, whatever may be the goal of whom takes it. Yet, are numerous the sentences, both of the Constitutional Court and the Supreme Court, that affirm that the fundamental right to the own image, like with the rest of the fundamental rights, is not an absolute and unconditioned right. There exist circumstances which may determine that the general rule, according to which is the owner of this right who, in principle, corresponds to decide whether is allowed the taking and diffusion of its image by a third or not, yields in favor of other rights or interests constitutionally legitimate.
Well then, the article 7, point fifth of the Organic Law 1/1982, of 5 May, of civil protection of the honor, the personal and family intimacy and the own image, points out that will have the consideration of unlawful intromissions in the ambit of protection delimited by the second article of this law the taking, reproduction or publication by photography, film, or any other procedure, of the image of a person in places or moments of its private life or out of them, except the case envisaged in the eighth article, two).”
According to the article 8.2 of the Organic Law 1/1982 (LO 1/1982), these exceptions are: “Two. In particular, the right to the own image will not impede:
a) Its taking, reproduction or publication by any means when it is a person who exercises a public charge or a notorious or public projection profession and the image is taken during a public act or in places open to the public.
b) The utilization of the caricature of such persons, according to the social use.
c) The graphic information about an event or public episode when the image of a determined person appears as merely accessory.”
– The right to the computer freedom or right to the informative self-determination (art. 18.4 CE): According to the article 4 of the Regulation (EU) No 2016/679 of the European Parliament and of the Council, ““personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.”
Therefore, we should understand, that the image of a person, its voice, or any other characteristic personal feature, should be regarded a personal data. Later, we will continue talking about this right, for now with the said is enough.
So far, we have seen the three behaviors which form part of the objective elements of the type and the rights to which them affect. Let us now see, the subjective elements of the type. The typical behavior has to be malicious, in other words, the active subject should know and want the objective elements of the type. But, besides, this malice should have a special quality, the typical behaviors have to be carried out with the goal of, discovering the secrets or violating the intimacy of another. The Provincial Court of Vigo´s resolution number 2586/2022: “On the other hand and with respect to the subjective type, the precept demands – as the Spanish Supreme Court´s sentence of 19 May 2017 continues gathering- that the subject acts with the goal of discovering the secrets of another or violating its intimacy. This characteristic can be implicit in the own characteristics of the act of taking possession.”
We do discard altogether, that this kind of behavior can be carried out by imprudence, since according to the article 12 CP, only can be punished the imprudent actions and omissions when expressly the law expresses it.
Reached this point, we should talk about the “iter criminis”. The crime will be consummated, from the moment the taking of possession, interception or recording takes place, without the necessity that effectively is violated any of the legal goods to which potentially could affect these behaviors. The Provincial Court of Leon´s sentence 478/2023: “The Spanish Supreme Court´s sentence 351/2021, of 28 April, deponent Bermudo Gómez de la Torre, remembers that “the article 197 CP describes a criminal figure which is integrated in the category of the crimes of intention and in the modality of mutilated crime of two acts, one of taking possession, interception or utilization of technical devices, joined to a subjective element additional of malice, which consists in the intention of committing a subsequent act, to discover the secret or violate the intimacy; the other, without necessity that this finally takes place.” The relevant is that, for its consummation, does not need the effective access to the intimacy since “it is enough with the utilization of the system of recording of the image (objective element), with the goal pointed out in the precept of discovering the secrets or violating the intimacy (subjective element), in other words, in this case, the basic type is consummated by the only fact of the taking of the images of the victim, with the end of violating the intimacy. This is why it has been qualified as an intentional crime, of cutted result, whose exhaustion may take place – what gives rise to a compounded type- if such images are spread, revealed or ceded to thirds, a scenario of aggravation envisaged in the point 3.1 of the same precept, what entails the previous carrying out of the basic type.”
Lastly, we should stress that, in order to be able to regard any of these behaviors as typical, the passive subject cannot consent them, otherwise, these behaviors will pass to be regarded as atypical.
Article 197.2:
Let us now talk about the article 197.2. For that, as before, the first we should do is to see in which consists the objective elements of the type, for later analyzing the legal goods affected by the typical behaviors.
The objective elements of the type consist in, without being authorized: 1) To take possession, utilize or modify “in prejudice of a third, reserved data of personal or family character of another which are recorded in files or computer, electronics or telematics media, or any other type of archive or public or private register, and; 2) To access by any means to these data or alter or use them, in prejudice of the owner of the data or a third.
The legislator has described the two behaviors broadly, trying to include any access, use or gain derived from personal data which pertains to a third and which are in a database of any type. The Spanish Supreme Court´s sentence number 2592/2022 says: “The different modalities of action imply an aggression to the custody of the data which appear expressed with the term “without being authorized” what implies not only an access not permitted to the reserved information, like the one which could be carried out by a person alien to the database or the file which includes the data specially protected, also an access carried out by a person authorized out of the ambit of the authorization and from here, as we said in the Spanish Supreme Court´s sentence 1328/2009 of 30 December, the main verbs of the penal type has to be interpreted in the broad sense including the scenarios in which are copied the data leaving unaffected the originals, being enough with taking, apprehending, the content of the information, without being necessary the material possession of the data.”
Of them, the most important is to give a definition of personal data, a definition which we have already given, but due to its importance we are going to repeat. According to the article 4 of the Regulation (EU) No 2016/679 of the European Parliament and of the Council, ““personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.”
Among the data, which may be qualified as personal data, the CP does not distinguish between them, therefore, in principle all are protected, without being important the matter they treat. The same Spanish Supreme Court´s sentence number 2592/2022, also says: “As the Spanish Supreme Court´s sentence number 532/2015 of 23 September says, in principle all the personal data analyzed are “important” because the law does not distinguish when it protects them and the penal type envisages an aggravation (art. 197.6 CP) for the cases in which the object is especially important, affecting to ideology, religion, beliefs, race or sexual life.”
Let us now talk about the requisite that demands the penal type, according to which there should exist a prejudice to the owner of the data, because for me, the redaction of this second paragraph of the article 197 is not very clear, its interpretation can give rise to errors. In order to avoid these errors, the best will be to recur, as always, to the said by the Spanish Courts. We continue obtaining information from the Spanish Supreme Court´s sentence number 2592/2022, according to which: “The expression of the prejudice does not suppose that the crime incorporates an economic goal. It is a crime that supposes the knowledge and will in the action carried out acting knowingly, insofar as the prejudice is referred to the danger that the data of the protected data base may be known by not authorized persons.”
And later the same sentence adds: “Any of the typical behaviors of the article 197.2 cp should be carried out in prejudice of the owner of the data or a third, including the mere access. In prejudice is referred to the danger that the data kept in the files may be known by not authorized persons, without being necessary the production of a result. But in the analyzed cases is what occurred with the cessions.”
Consequently, we should understand that the prejudice does not have an economical sense, but the loosing of this private character by the data on being known by third persons not authorized. Besides, the concurrence of the prejudice for the owner of the data or third, must be demandable for any of the behaviors described in the type.
Let us now talk, about the legal good protected. This is the computer freedomor right to the informative self-determination, to which we referred before. In this case, the legal good protected is clear, though there may exist some cases in which the legal goods affected may be other, like the right to the own image when the data base contains personal data in the form of pictures. The right to the computer freedom has been defined by the Provincial Court of San Sebastian´s resolution number 971/2018, as: “This second dimension of the intimacy known as computer freedom or “habeas data”, finds its support in the article 18.4 CE, where expressly is established that, “the law will limit the use of the computer science for guaranteeing the honor and the personal and family intimacy of the citizens and the full exercise of their rights.” From this proclamation is derived the power of action of the owner for demanding that determined personal data cannot be known, what supposes recognizing a right to the informative self-determination, understood as the freedom to decide what personal data can be obtained and treated by others. Or the so-called computer freedoms means, for, the right to control the use of the data of family and personal character which may be gathered and treated through computers (habeas data); particularly -as the doctrine points out- among other aspects, the capacity of the citizen for opposing that determined personal data are utilized for different aims than the legitime which justified their obtaining (Spanish Supreme Court´s sentences number 11/98 of 13 January and 45/99 of 22 March).”
With regard to the subjective elements of the type, we are before a malicious crime. The Spanish Supreme Court´s sentence number 2592/2022, says:
“a) It is a malicious crime, but not of tendency, it is enough with the subject representing to itself the possibility that any person may result affected by the utilization of the data, without existing a specific aim of damaging a third.
b) The crime is consummated as soon as the active subject accesses to the data, as soon as it knows them and have them at its disposition, without necessity of a subsequent damage, for only in those cases is breached the reserve which cover them.
c) Any of the typical behaviors of the article 197.2 CP must be carried out in prejudice of the owner of the data or a third, including the mere access. The prejudice is referred to the danger that the data contained in the files may be known by not authorized persons, without being necessary the production of the result. But in the cases analyzed was what occurred in the cessions.
d) It is an intentional crime of cutted result whose exhaustion would take place if the data are spread to not authorized persons.
e) The access to important data, the taking of possession of the them and their spread is already that damage to its right to maintain them secret and hidden, integrating the prejudice demanded, while the not important data, having damaging potentiality, their concurrence has to be proven.”
Article 197.3:
We said at the beginning that, in the article 197 there are various typical behaviors and various aggravated subtypes. In the article 197.3 we find the first of these aggravated subtypes.
The punishment to be imposed, for any of the behaviors described in the first and second point of the article 197 is now of imprisonment from two to five years, “years if are spread, revealed or ceded to thirds the data or facts discovered or the images taken to which are referred the above numbers.”
And of imprisonment from one to three years and fine from twelve to twenty-four months, for “who, with knowledge of its illicit origin and without having taken part in its discovery, carries out the behavior described in the above paragraph.”
This third point of the article 197 punishes more severely the cases in which the data or images have been spread.
Article 197.4:
The fourth point of the article 197 makes exactly the same, it increases the punishment for the crimes envisaged in the first and second point, when are met the requisites mentioned in it. The punishment is now of imprisonment from three to five years and the circumstances, as we have already seen, are:
“a) Are committed by the persons in charge of the files, computer, electronic or telematic media, files or records; or
b) are carried out through the not authorized use of personal data of the victim.
If the reserved data have been spread, ceded or revealed to thirds, will be imposed the punishments in its superior half.”
Besides, the punishment will be imposed in its superior half, if the reserved data had been spread, ceded or revealed to a third. This solves the problem that, the third point of the article 197, is only referred to the first and second point.
Article 197.5:
In the article 197.5 we find another aggravated subtype, this time the increase in the punishment is due to the fact that the data contains important information, like the ideology, religion, beliefs, health, race or sexual life, or when the data pertain to a minor of age or to a handicapped person needed of special protection.
In these cases, the punishment envisaged in the points first and second, will be imposed in its superior half.
This point has served to the Courts, for arguing that any kind of personal data is protected by the first and second point of the article 197. Their line of argument is simple, if the by means of the fifth point are increased the punishments for certain kinds of data which are especially important, the rest of the data should be protected by the basic types of the first and second point of the article 197.
Article 197.6:
In this point sixth, we find the last aggravated subtype of the article 197. When any of the behaviors described in the first four points is carried out with the aim of obtaining a profit, their punishments will be imposed in their superior half. Besides, if any of these behaviors affect to the data especially important of the fifth point, the punishment to be imposed will be from four to seven years.
Article 197.7:
In this point of the article 197, we find the last two typical behaviors. The legislator has wanted to include them aside, hence, all what we have seen so far, do not affect them.
The two typical behaviors are: 1) without authorization of the person affected, to spread, reveal or cede to thirds images or audiovisual recordings of it which it has obtained with its consent in a domicile or in any other place out of the reach of sight of thirds, when the spread gravelly damage the personal intimacy of a person, y; 2) To have received the images or audiovisual recordings to which is referred the above article, and spread, reveal or cede them to thirds without the consent of the person affected.
The first typical behavior, consists in spreading, not obtaining, images which affect gravelly the intimacy of the passive subject. These images may be of any kind, though they always have to be related to the private sphere of a person.
The Provincial Court of Valencia´s resolution number 3157/2022 says: “as expressed the Spanish Supreme Court´s sentence number 70/2020 of 24 February, “for even when we admitted that in the tried cases predominate the scenarios of diffusion of images of marked sexual character, it is also true that the precept does not identify the typical behavior with this strict sexual content. The article 197.7 of the Penal Code, alludes to contents whose spread gravelly damage the personal intimacy. The sexual sphere is, for sure, one of the manifestations of what has been denominated the hard core of the intimacy, but it is not the only one…The defective legal technic which inspired the wording of the precept makes the exegesis difficult. It is enough with stopping in the tautologic taste of the last remark of the art. 197.7, in it is alluded to the “personal intimacy of that person”, like if there existed an intimacy not personal and, therefore, not bound to a person. We have said in such judicial resolution that the photography or video has to exhibit “some aspect of the intimacy of the victim.” Thus, the typical wording illustrates that the material object of the crime is not integrated by images or audiovisual recordings of sexual character. It is extended, therefore, to any activity which can be qualified as private.”
Something which we have to clarify too, is the fact that the images should be taken in a domicile or any other place out of the reach of the sight of thirds. The Spanish Courts have interpreted broadly this requisite. The Provincial Court of Valencia´s resolution number 3157/2022 says: “Regarding the requisite of location, The Spanish Supreme Court´s sentence number 699/2022 follows the interpretation given by the 70/2020 and indicates that, though certainly in the proven fact is not expressed the place where is taken the image, “in the sentence above referred, is said that, although it is true that the article 197.7 of the Penal Code demands that these images have to have been obtained “…in a domicile or any other place out of the reach of the sight of thirds”, this phrase does not add a demand of location to the moment of obtaining by the author. What is looked for by the legislator is to underline and underpin the excluding value of the intimacy with an expression that, in line with the defective technic which inspire the wording of the precept, may darken its comprehension, above all, if we cling to a literal interpretation of its words. The domicile, for example, is a concept which if it is understood in it genuinely legal meaning (art. 40 of the Civil Code), will restrict in a way unjustifiable the type. Images obtained, for example, in a hotel or any other place alien to the legal domicile of a person, would lack of legal-penal protection, being expressions of an undoubtful manifestation of the intimacy. And the demand that the obtaining should be verified “…out of the reach of the sight of thirds”, would conduct to the exclusion of those scenarios- imaginable without difficulty- in which the taken image reproduce a scene with more than one protagonist. Consequently, we cannot cling ourself to an interpretation adjusted to a defective literality which does not take into account other hermeneutic canons to our reach. The core of the typical action consists, not in obtaining but in spreading the images obtained with the consent of the victim and which affect gravelly to its intimacy.”
With respect to the second typical behavior, it affects to those who have received images or audiovisual recordings or the passive subject, but with its consent, for later spreading them without the consent of the passive subject. What is punished in this case is the spread of images, which have been legally obtained, without the consent of the passive subject.
The legal good protected by both behaviors is the intimacy and the right to the own image, to which we referred before.
In order to comply with the subjective element of the type, in the spread of the images there should be malice, at least, in its eventual modality. It implies that, the active subject of the crime must know that its behavior is gravelly damaging the intimacy of the passive subject, or at least, that it will with all probability happen.
Lastly, for these two typical behaviors, the last paragraph of the article 197.7 also envisages an aggravated subtype, the punishments envisaged for them will be imposed in its superior half when “the facts have been committed by the spouse or by person who is or has been bound to it by analogous relation of affectivity, even without living together, the victim is a minor of age or a handicapped person needed of special protection, or the facts have been committed with purpose of making a profit.”
Article 197 bis:
The article 197 bis says:
“Article 197 bis.
1. Who by any means or procedure, violating the measures of security established for impeding it, and without being duly authorized, access or facilitates to other the access to the whole or a part of a system of information or maintains itself in it against the will of whom have the legal right to exclude it, will be punished with the punishment of imprisonment from six months to two years.
2. Who through the utilization of technical devices or tools, and without being duly authorized, intercepts no public transmissions of computer data which are produce from, towards or within a system of information, including the electromagnetic emissions, will be punished with a punishment of imprisonment from three months to two years or fine from three to twelve years.”
After reading the article, I have the doubt of, what is a system of information? According to the Wikipedia, “In computer science, a system of information is any computer system which is utilized for obtaining, storing, manipulating, administering, controlling, processing, transmitting or receiving data, for satisfying a necessity of information.”
And according to the Wikipedia, a computer system is “a system which allows to store and process information; it is the three parts intertwined: hardware, software and computer personal. The hardware includes computers or any kind of electronic devices, which consists in processors, memories, systems of storing, etc. El software includes an operative system, firmware and applications, being especially important the systems of management of databases. Lastly, the human component includes the technical personal which support and maintains the system (analysts, programmers, operatives…) and the users who use it.”
Then, the article 197 bis, is referring to computer system formed by hardware, software and humans.
In the article 197 bis, two are the typical behaviors: 1) By any means to violate the measures of security and without being duly authorized, for accessing or facilitating to other the access to the whole or part of a system of information, or maintaining itself in it against the will of whom has the legal right to exclude it, and; 2) To use technical devices or tools, without being duly authorized to it, for intercepting transmissions no public of computer data which are produced from, toward or within a system of information.
In both behaviors, what transforms them into typical is the lack of authorization for accessing to the system of information. On the contrary, anyone who makes the described in the type with the legal authorization for making it, will act within the margins of the legality.
The subjective type will be fulfilled when the behaviors above described are carried out with malice, at least, in its eventual modality. This implies that, the active subject should know that with its behavior the objective elements of the type are being fulfilled, or at least, to know that probably this is happening.
It is entirely discarded, the commission of the crime by imprudence, since according to the article 12 of the CP that a crime can be committed through imprudence has to be expressly envisaged.
Article 197 ter:
The article 197 ter says:
“Article 197 ter.
Will be punished with the punishment of imprisonment from six months to two years or fine from three to eighteen months who, without being duly authorized, produces, acquires for its use, import or, by any means, facilitates to thirds, with the intention of facilitating the commission of any of the crimes to which are referred the points 1 and 2 of the article 197 or the article 197 bis:
a) a computer program, mainly conceived or adapted for committing that crimes; or
b) a password of computer, a code of access or similar data which allows to have access to the totality or a part of a system of information.”
In it, is punished the typical behavior which consists in, to produce, acquire for its use, import or, in any other way to facilitate to thirds, for facilitating the commission of some of the crimes to which is referred the points one and two of the article 197 or of the article 197 bis: “a) a computer program, mainly conceived or adapted for committing that crimes; or
b) a password of computer, a code of access or similar data which allows to have access to the totality or a part of a system of information.”
As we can see are punished both, who distributes and who acquires. The article 197 ter says that, the computer program should be mainly conceived or adapted for committing such crimes, what in principle would exclude those computer programs which can fulfill those illicit goals, but have been mainly designed for licit aims.
Like the rest of the crimes of this chapter, for complying with the subjective elements of the type, the typical behavior has to be carried out with malice. In other words, the active subject should carry it out knowing that is fulfilling the objectives elements of the type, or at least, knowing that probably with its behavior it is fulfilling them. Besides, the malicious behavior should have the the intention “of facilitating the commission of some of the crimes to which is referred the points one and two of the article 197 and the article 197 bis.”
Article 197 quarter:
The article 197 quarter says:
“Article 197 quarter:
If the facts described in this Chapter have been committed within a criminal group or organization, will be apply respectively the punishments superior in degree.”
That the guilty pertains to a criminal group or organization, is an aggravated subtype which will enter into a concurrence of norms with the types of Chapter VI of the Title XXII of the Book II, of the criminal group or organizations or, in its case, with the crime of illicit association of the article 515.1o. In any case, like the Circular 2/2015 points out when it talks about such aggravated subtype although in relation to the crime of child pornography of the article 189, this has to be solved by application of the rule envisaged in the art. 8.4o, since the second paragraph of the second point of the art. 570 quarter CP opts for this option. Therefore, in these cases for determining which is the gravest punishment, we have to compere the punishments envisaged for the crimes of this chapter, with those which result from applying the types of the article 570 bis, or in its case of the article 570 ter CP, and some of the crimes of this chapter (basic type or aggravated type if concurs any other aggravating circumstance different to the pertaining to criminal organization or group, otherwise the principle non bis in idem would be infringed).
Article 197 quinquies:
The article 197 quinquies says:
“Article 197 quinquies.
When according to the established in the article 31 bis a legal person is liable of the crimes comprehended in the articles 197,197 bis and 197 ter, will be imposed to it the punishment of fine from six months to two years.
Taking into account the rules established in the article 66 bis, the judges and courts may also impose the punishments established in the letters b) and g) of the point 7 of the article 33.”
Through the article 197 quinquies, is established the penal liability of the legal persons when is committed any of the crimes of the article 197, 197 bis or 197 ter within them. For, as is mentioned in the article 31 bis, a legal entity for being liable of a crime, it has to be previously envisaged in the law.
Article 198:
The article 198 says:
“Article 198.
The authority or public servant who, out of the cases allowed by the law, without existing legal cause for crime, and making use of its charge, carries out any of the behaviors described in the above articles, will be punished with the punishments respectively envisaged in them, in its superior half and, besides, with the absolute disqualification from six to twelve years.”
In the article 198 is being punished the authority or public servant who, out of the cases envisaged in the law, without legal cause for a crime and making use of its charge, carries out any of the typical behaviors described in the article 198.
Therefore, we are before a special improper crime, since the active subject of the crime has to be an authority or public servant.
We should distinguish this crime from the crime envisaged in the article 417.1 CP, which punished the authority or public servant who reveals secrets or information of which it has knowledge as consequence of its charge or trade. According to the Spanish Supreme Court´s sentence number 525/2014 of 17 June 2014 (Rec. 136/2014): “The Spanish Supreme Court´s sentence number 377/2013 of 3 May explained that the essential difference between the behaviors contemplated in the articles 197 and 198 and the article 417 CP, committed by a public servant or authority, is centered in the legality of the access to the reserved information to which is referred such precepts.
a.- The article 197 departs from the demand that the author is not authorized for the access, the taking of possession, the utilization or the modification in relation to the reserved data of personal or family character.
b.- The article 198 punishes the authority or public servant that, out of the cases allowed by the law, without existing cause for crime and making use of its charge, carries out any of the behaviors in the above article.
c.- While the article 417 punishes the revealing of secrets or information which should not be spread, and of which the authority or public servant has had knowledge by reason of its charge or trade.
Therefore, in the case of the article 417, the typical information should be about matters related with the functions which the public servant or authority has attributed.”
Article 199:
The article 199 says:
“Article 199.
1. Who reveals alien secrets, of which it has knowledge as consequence of its trade or work relations, will be punished with the punishment of imprisonment from one to three years and fine from six to twelve months.
2. The professional who, not complying with its obligation of stealth or secret, spreads the secrets of other persons, will be punished with the punishment of imprisonment from one to four years, fine from twelve to twenty-four months and special disqualification for such profession from two to six years.”
In the article 199 are described two behaviors: 1) To reveal alien secrets, of which it has knowledge for reason of trade or work relation, and; 2) The professional who, not complying with its obligation of stealth or secret, spreads the secrets of a person.
Both typical behaviors are similar, however, the second is more punished, for there exists determined professions, as the profession of lawyer, which are obliged to comply with the duty of secret.
The article 21.1 of the General Statute of the Spanish Legal Profession says:
“1. The confidence and confidentiality in the relations with the client impose to the legal professional, in accordance with the Organic Law 6/1985, of 1 July, of the Judicial Branch, the duty and right of keeping in secret all the facts or events which it knows for reason of any of the modalities of its professional commitments, not being possible to oblige it to testify about them.”
Article 200:
The article 200 says:
“Article 200.
The envisaged in this chapter will applicable to who discovers, reveals or cedes reserved data of legal entities, without the consent of its representatives, except the envisaged by other precepts of this code.”
The article 200 puts at the same level, the rights of a legal entity and the rights of a physical person.
Article 201:
The article 201 says:
“Article 201.
1. For prosecuting for the crimes envisaged in this Chapter it is necessary the report of the offended person or its legal representative.
2. Will not be necessary the report demanded in the above point for prosecuting for the facts described in the article 198 of this Code, nor when the commission of the crime affects to the general interests, to a plurality of persons or when the victim is a minor of age or a handicapped person needed of special protection.
3. The pardon of the offended or its legal representatives, in its case, extinguishes the penal action without the prejudice of the envisaged in the article 130.1.5º, second paragraph.”
The crimes of discovery and disclosure of secrets, have been shaped by the legislator as private crimes, except the exceptions envisaged in its second paragraph.
That they are private crimes derives from the fact that, is required the report of the offended person or its legal representative for the prosecution of the active subject, and from the fact that, the own CP allows that the pardon of the offended extinguishes the penal action.
In my opinion, that the offended pardons the active subject only supposes the extinction of the penal liability derived from the crime, but the active subject will be still liable of the civil liability derived from the crime. For regarding that the civil liability is also extinguished, the offended expressly has to renounce to it (article 112 of the Spanish Procedural Criminal Law), having been previously informed of its consequences.
Víctor López Camacho
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com