“Of the crimes relative to the market and the consumers”, is how is entitled the Third Section, of the Chapter XI, concerning to the crimes relative to the intellectual and industrial property, to the market and to the consumers, of the Title XIII, about the crimes against the patrimony and socioeconomic order, of the Book II, which contains the crimes and its punishments, of the Spanish Penal Code (CP).
It is a section formed by thirteen articles, from the article 278 to the article 286. Let us see, for the sake of clarity, what is the object of each of them: In the article 278, it is punished anyone who takes possession of materials for discovering a company secrets; In the article 279, is punished who has access to company secrets due to its job, and spreads, reveals or shares them; In the article 280, is punished who without having taking part in their discovery, carries out any of the behaviors punished in the above articles with company secrets; The article 281 punishes who diverts raw materials or essential products; The article 282 punishes the manufacturers or traders who lie in their goods´ advertisements; The article 282 bis punishes the administrators in fact or by right who lie in the financial product issuance brochures or other documents which they are obliged to issue according to the stock market legislation; The article 283 punishes who alters or tampers the devices by which are measured the costs of the services provided to their clients; In the article 284 are punished three behaviors, the employment of violence, threats or deceptions for altering the prices, the spreading of false information about companies and the realization of transactions, transmission of signals or emission of orders for providing false or deceptive hints on the supply, demand or price of a product; The article 285 punishes who makes use of privileged information in order to acquire, transmit or cede a financial instrument; The article 285 bis, punishes who reveals privileged information out of the normal exercise of its job, profession or functions; The article 285 ter, applies the established in the previous three articles to the products regulated in the Spanish and European legislation about market and financial instruments; In the article 285 quarter is punished the provocation, conspiration or proposition for committing any of the crimes established from the article 284 to the article 285 bis, and; The article 286 punishes four behaviors, all of them related with the non-consented access to services of sound or television broadcasting, or interactive services provided at distance by electronic means.
Now, the moment has arrived of commenting each of these articles.
– Article 278:
With the article 278 starts the series of three articles which have as object the protection of the company secrets and which, as such, ends in the article 280. Let us see its content first, in order to analyze it later. The article 278 says:
“Article 278:
1. Whoever, to discover a company secret takes data, electronic or written documents, computer media or other objects referring to it, or employs some of the means or instruments pointed out in the article 197, shall be punished with the punishment of imprisonment from two to four years and a fine from twelve to twenty-four months.
2. Shall be imposed the punishment of imprisonment from three to five years and fine from twelve to twenty-four months if are spread, revealed or ceded to third parties the secrets discovered.
3. The established in this article shall be understood without prejudice of the punishments which might correspond for taking or destroying the computer media.”
The concept of company secret:
The first thing we need to know to understand this article and the other two articles which follow it, is what is a company secret. Because, the CP does not provide a definition, making us to resort to other complementary sources, the jurisprudence and other laws.
Let us begin with the first. According to the Spanish Supreme Court´s sentence of 20 December 2018, number 679/2018, Rec 2585/2017, the: “The most important element of this crime -like the established in the article 278 CP- is the company secret, which is not defined in the Penal Code, thus like we said in our sentence 285/2008 of 12 May -also cited in the appealed resolution- “we should go to a functional-practical conception, considering company secrets those pertaining to the company activity, which in the case of being known against the will of the company, might affect to its competitive capacity. Its characteristic features are: – the confidentiality (it is wanted to be maintained under reserve), – the exclusivity (it pertains to a company), – the economic value (economic advantage or profit), – licitness (the activity has to be legal for its protection).”
We can obtain another example from the Provincial Court of Murcia´s resolution of 25 May 2017, number 424/2017, Rec. 128/2017, which says: “For such company secrets may be understood all the information concerning it which is used and kept with criterions of confidentiality and exclusivity, in order to guarantee an optimum position in the market against the rest of the competing companies; referring itself to secrets relative to the technical industrial, commercial, and organizational sectors of the company. The company secrets can be also considered as the reserved knowledge about ideas, products or procedures which the businessman, as consequence of their competitive value, decides to maintain hidden. Or that information, knowledge, technics, organizations or strategies which are not known out of the business ambit and about which there exists a will of maintaining them hidden for its competitive value (Provincial Court of Madrid´s sentence of 16 May 2005, Provincial Court of Barcelona of 10 May 2006). The same minor jurisprudence (Provincial Court´s sentence of 20 October 2004), has declared that the information, within the ambit of the company and the market, is currently shaped as a true economic value. Being this value, tied with the characteristics of confidentiality and exclusivity (exclusive and excluding in the sphere of industrial competitiveness, as the Supreme Court points out in the sentence of 24 April 1989), the object of protection. This is why, it is possible to affirm that the protecting normative of the company secret tries to protect the economic interest which the secret has for the company, whose discovery may boost the competitive capacity of the rivals and diminish its own capacity.”
We can find another example in the Provincial Court of Barcelona´s resolution 4436/2023: “Its content is usually understood integrated by the secrets of technical-industrial nature (object of the company), of commercial order (clients or marketing) and organizational (laboral matters, of company running and plans). Its materialization can take place in any kind of means (paper or electronic), original or copy and, even, by verbal communication. It is as possible to include numbers as lists, accounts, charts, plans, internal memorandums, etc.”
Despite the effort made by the Spanish Courts to define what is a company secret, there are two laws where is defined too, one is the Agreement of the World Trade Organization about the Aspects of the Intellectual Property Rights related with the Commerce, which is the most complete agreement about intellectual property and ratified by Spain on 30 December 1994, which although referring to information not spread yet and not expressly to company secrets, in its article 39 establishes that it should have the following characteristics:
“a) it has to be secret in the sense that it is not, as body or in the shape and precise union of its components, generally known nor easily accessible for persons introduced in the circles where it is normally used the type of information in question; and
b) It has a commercial value for being secret; and
c) It has been the object of reasonable measures, in the circumstances, for maintaining it secret, taken by the person who legitimately controls it.”
And the other norm, is the Law 1/2019 of 20 February of Company Secrets, which entered into force on 13 March 2019, and which defines “company secret” in its first article:
“For the purpose of this law, it is considered company secret any information or knowledge, including the technological, scientific, industrial, commercial, organizational or financial, which gathers the following conditions:
a) To be a secret, in the sense that, as a whole or in the shape and precise union of its components, it is not generally known by the persons pertaining to the circles in which is normally used the type of information or knowledge in question, nor easily accessible to them;
b) it has a company value, either real or potential, precisely for being a secret, and
c) it has been the object of reasonable measures by its owner for maintaining it as a secret.”
Of all the definitions given, my favorite is the last one, for being contained in a recent law which is in force, though the others still can help us to understand the concept.
Article 278.1:
The legal good protected by the article 278 is the correct working of the market of goods and services, as the Provincial Court of Barcelona´s sentence number 4436/2023 indicates: “allegedly infringing the free competence which must preside the correct working of the market of goods and services, legal good protected by the article 278 and 279 CP.”
Once we have clear, what is a company secret and the legal good protected by the norm, we can continue analyzing the objective and subjective elements of the basic type, in other words, the established in the article 278.1 CP.
In the article 278.1 is punished who, “to discover a company secret takes data, electronic or written documents, computer media or other objects referring to it, or employs some of the means or instruments pointed out in the article 197.”
Let us begin with the objective. In order to discover the company secrets the active subject may carry out two classes of behaviors:
1) To take by any means data, written or electronic documents, computer media or other objects, or
2) To employ some of the means or instruments pointed out in the point one of the article 197, in other words, to take papers, letters, emails or any other documents or personal belongings, to intercepts its telecommunications or use technical devices of listening, transmission, recording or reproduction of the sound or the image, or any other signal of communication.
On the other hand, the aim of the active subject should be to discover a company secret, something which transforms the behavior in malicious. Being a subjective element and consequently pertaining to the private sphere of the active subject, we should attend to all the external elements which surround the commission of the crime and which may confirm the active subject searched this aim, when he carried out any of the criminal behaviors described. Besides, that the active subject should be moved by the aim of discovering a company secret, implies that he cannot know it before carrying out the typical behavior, what excludes from the application of the type, all those who by any motive already knew the company secrets before taking the documentation or using the means of recording.
The Provincial Court of Santander´s sentence number 648/2023 says: “Who already knows the secret because of its job, cannot committing a crime which requires the concurrence of the subjective element and the intentional will which requires the type object of conviction, the aim of discovering a secret.”
Later it adds two examples:
– “This is the point of view of the Provincial Court of Baleares´s sentence of 30 January 2018, number 32/2018; Rec. 84/2017: Indicating “On the other hand, from the point of view of the behavior described in the article 278 CP, the accused already know the information to which the plaintiff alludes (a list of ceded workers, clients, and contractual forms) since they were already working in the sector, before starting to work to it, being these high skills and their possession of a client portfolio what determined their hiring by the plaintiff entity. This is why, they could not take such documents for discovering any secret which is the behavior described in the penal type.”
– Likewise, the Provincial Court of Alava´s resolution of 11 October 2021, number 581/2021, REC 329/2021: “The article 278 punishes “whoever, to discover a company secret”, carries out determined typical actions. “Such criminal action has to have as aim to discover a secret”, the action of taking should be “aimed to achieve the discovery”; in other words, this crime “has to be committed by who do not know the secret and tries to discover it.” (STS number 864/2008 of 16 December).
The Spanish Provincial Court of Santander´s sentence number 648/2023, says more interesting things:
– “From the point of view of the legal good protected, the article 278.1 is shaped as a crime of danger which is perfected with the realization of the typical behavior of taking possession with the intention of discovering a company secret, therefore we are before a scenario of advancing of the punitive walls which suppose the exclusion of the imperfect forms of committing the crime. At the same time, the tendency character of the article 278.1- to discover a company secret-, shapes the type as a crime of inner intensified tendency, where the action should be presided by the will of discovering, what demands that the will should be previous or coetaneous to the realization of the typical behavior.”
– “It is a crime of anticipated consummation: It is enough the action of taking aimed at achieving such discovery. To achieve the knowledge of the secret pertains to the subsequent exhaustion of the infringement. Even, it is committed though later it was not possible to achieve this discovery of the secret because, for example, the author of the crime could not finally discover the codes used by the company.”
Summing up, the crime is perfected from the moment that the active subject, with the intention of discovering company secrets, takes either the documents or computer media, without mattering whether later he has access to the information or not.
In order to underpin all the above, we are going to quote the Spanish Supreme Court´s sentence number 7442/2008:
“2. The art. 278 punishes a type of crime constituted by the following elements:
1º The typical action consists in either: a) taking by any means data, written or electronic documents, computer media or other objects; or b) employing some of the means or instruments of the point 1 of the article 197, which, at the same time, relates some types of commission which it is not important now to concrete.
2º Such criminal action has to have the aim of obtaining a secret, this is, something that is known by one or various persons who has or have interest into not sharing the information with others, particularly with those who carry out the same kind of activity.
3º It has to be a company secret, a broader example than the industrial secret to which was referred the article 499 of the previous CP, since it does not comprehend only the relative to the technics of the procedures of production, but also to the relative to the commerce or organization of the business.”
Article 278.2:
Analyzed the first point of the article 278, not many secrets left to discover in its second, despite this, let us study some of its aspects.
As we have already seen, in this second point of the article 278, we find an aggravated subtype of the behavior established in the first. The punishments are increased, as consequence of the greater disvalue of the action, not only the data with the company secrets are taken, but they are also share with third parties. In this case, is punished who carrying out the typical behavior described in the first point, spreads, reveals or cedes to thirds the secrets discovered.
We are again before a malicious crime, which is perfected from the moment the active subject, with the intention of discovering the company secrets, takes the documents and shares them with third parties. Without mattering, for the perfecting, whether the active subject discovered the company secrets that the documents contained, or whether the third parties did it.
In this case, we should also understand, that the thirds parties with whom the documents are shared, cannot already know the company secrets, otherwise will not be justified the increase in the punishment of the aggravated subtype, and the facts should be punished according to the first point of the article 278, always that, evidently, the active subject does not previously know the company secrets taken.
Article 278.3:
The article 278.3 establishes a concurrence of crimes between the typified in the own article 278 and the others by which are punished the taking and destruction of the computer media.
For example, the taking of the computer media could be punished as a crime of theft (art. 234 CP) or of robbery (art. 237 CP), depending on whether there has been force on the things or violence or intimidation on the persons, or not. In this concrete case, there would exist an ideal concurrence of crimes (art. 77 CP), for the robbery or theft of the computer media would constitute at the same time a crime of company espionage of the article 278.
On the other hand, the destruction of the computer media, might be considered a crime of damages (art. 263 CP), though in this case I would choose a relation of real concurrence of crimes (art. 73 CP), between this and the crime of company espionage (art. 278 CP).
– Article 279:
As in the case of the article 278, the object of the article 279 is the company secrets, both of them also share the protected legal good, the correct working of the market of services and goods or the loyal competence between the companies. Let us see this article 279:
“Article 279.
The spreading, revelation or cession of a company secret carried out by who has the legal or contractual duty of confidentiality shall be punished with the punishment of imprisonment from two to four years and a fine from twelve to twenty-four months.
If the secret is used in its own advantage, the punishments shall be imposed in their inferior half.”
We see that the typical action consists in, “The spreading, revelation or cession of a company secret carried out by who has the legal or contractual duty of confidentiality…”
We are not going to talk again about what is a company secret. Notwithstanding, despite the fact of having the same object and protecting the same legal good, there is a big difference between the article 278 and the article 279, since the latter can be only committed by those who has a legal or contractual duty of confidentiality, transforming it into a special own crime. Let us concrete a little more the persons who have this duty of confidentiality. The first we have to mention are the managers of a company, for they have the duty of “keeping in secret the information, reports or precedents to which they have had access during the fulfillment of their duty, even when they have left this position, save the cases in which the law allows or requires it.” (art. 228 of the Spanish Corporate Law). The second, are the own workers of the company who have the duty of, “Not concurring with the activity of the company, in the terms set by this law.” (art. 5.d of the Spanish Workers´ Statute), besides, in the cases in which there is an agreement of not concurrence after having been extinguished the employment contract, this cannot have a duration of more than two years for the technicians and of six months for the workers, and it can only be valid if two requisites are met: a) That the businessman has an effective industrial or commercial interest in this, b) That is satisfied to the worker an adequate economic compensation (art. 21.2 of the Spanish Workers´ Statute). Others who also have the duty of confidentiality, are the workers of other companies who have relations with the owner of the secret (providers, security,…) and other third parties who have had access to them for legal reasons (for example, public servants).
Being a special own crime, those not included in the above enumeration cannot be authors of the crime, but they can participate as cooperators (inductors or necessary cooperators) or accomplices.
Another important difference between both articles, the article 278 and the article 279, is that, while the former can only be committed by those who do not know the secret before carrying out the typical action, the latter, can be only committed by those who already know it. This makes us think about the moment in which the crime is perfected, it will be when who has the legal or contractual obligation of confidentiality spreads, reveals or cedes company secrets to third parties.
The Spanish Supreme Court´s sentence number 7442/2008 sums up the elements of the article 279 as follows: “The crime of the article 279 is integrated by the following elements:
1º It has as object the denominated company secrets in the terms we have just exposed.
2º The commissive means consists in the diffusion, revelation or cession of such secret.
3º The active subject is who has the legal or contrail duty of confidentiality, this is, of maintaining the secret which he knows because its concrete relation with the company demands it. It is not a common crime, but a special own crime.”
– Article 280:
With the article 280, end the articles of this Third Section, which has as object the company secrets. The article 280 says:
“Article 280:
Whoever, knowing its illicit origin, and without having taken part in its discovery, carries out any of the behaviors described in the previous two articles, shall be punished with the punishment of imprisonment from one to three years and fine from twelve to twenty-four months.”
Therefore, the article 280 autonomously punishes the behaviors described in the previous articles, when they are committed by a subject who meets two requisites:
1.- Not to have being part in the discovery of the secret.
2.- To act knowing the illicit origin of this discovery.
As subjective element of the type, we have to stress that this is a malicious crime.
Before finishing, with this cycle of crimes which have as object the company secret, we have to mention two issues which until now we have left aside: The application of the penal law as the last option or measure, and; The list of clients as company secrets.
The penal law as last option or measure in the repression of the behaviors which have as object the company secrets:
The repression of some behaviors by the penal law is undoubtedly a decision of the legislator, but it will be also conditioned, by the impossibility of compensating the damages caused by other ways less harming for the rights of the author of the infringing behavior, this is why we always talk about the penal law as the last option or measure.
The company secrets are also protected within the civil ambit by two norms, the Law 1/2019 of 20 February, of Company Secrets and the Law 3/1991, of 10 January, of Disloyal Competence, which enumerate the civil actions which are at the service of all those who see affected their company secrets. In this way, are reserved to the penal ambit all those behaviors which exceed the punishing precepts of the mercantile legislation or which, as consequence of their gravity cannot be left within the ambit of the administrative infringement and sanction or the liabilities of civil and mercantile character.
The lists of clients as company secrets:
One of the actions which is usually reported to the courts, is the taking of a list of clients, provoking the controversy of whether a list of clients is a company secret or not. It is probable, that there is more than one resolution clarifying it, but there is one that is the most mentioned by the minor jurisprudence, the Spanish Supreme Court´s resolution of 16 December 2008, which says: “Certainly, the individual data of each client are not secret but only to the own interested; but it does have to be considered as such the lists of all of them which have the companies for the good development of their commercial activities, with which they can adequately develop their work, more when they are administrative agencies, this is, of legal entities or private persons that are dedicated to, besides, professionally advising, to carrying out different procedures before state organisms, local or institutional, as the relative to the payment of taxes or Social Security contributions, labor mutualities,…”.
In any case, the list of clients should fit in the concept of company secret, which we developed before. In other words, it should be secret, to have business value and to have been the object of reasonable measures in order to be kept secret.
– Article 281:
The article 281 says:
“Article 281.
1. Whoever diverts from the market raw materials or essential products with the intention of depriving of supplies one of its sectors, or forcing one alteration of prices, or gravelly damaging the consumers, shall be punished with the punishment of imprisonment from one to five years and fine from twelve to twenty-four months.
2. The punishment superior in degree shall be imposed if the fact is carried out in catastrophic situations or of grave necessity.”
The legal good protected by the norm is the correct working of the market of goods and services or the loyal competence among the companies.
The article 281 is formed by two points, a first, with the basic type and the description of the typical behavior, and a second, with an aggravated subtype and the circumstances which motivate its application.
The typical behavior, objective element of the type, consists in diverting from the market raw materials and essential products. Let us now make an effort analyzing it by parts. According to the Spanish dictionary, to divert means, “to set aside, deviate, get away”. According to economipedia.com, a market is, “a process which works when there are persons who acts as buyers and others as sellers of goods and services, generating the action of interchange.”. The same website defines raw material as, “all product which is transformed during a process of production until it becomes merchandise sellable to a final consumer.” And according to the Law 37/1992, of 28 December, of the tax about added value (VAT), “it is understood by essential products those which are indispensable for the satisfaction of the immediate needs of the persons, like food, medicines and bed´s clothes and person´s clothes.” (art. 44).
Let us see, the subjective elements of the type. Undoubtedly, the article 281.1 describes a malicious behavior, which, besides, demands that this should be carried out “with the intention of depriving of supplies one of its sectors, of forcing one alteration of prices, gravelly damaging the consumers.” Then, it is also a crime of tendency and of anticipated consummation, it is enough with diverting from the market essential products or raw materials with the intention of depriving of supplies one of its sectors, or forcing the alteration of prices, or gravelly damaging the consumers, for understanding perfected the crime. The subsequent shortage of supplies, alteration of prices, or grave damage to the consumers, pertains to the stage of exhaustion of the infringement.
On the other hand, the aggravated subtype of the second point will be applied to situations of grave necessity or catastrophic. In order to determine what is a situation of necessity, we can make use of the article 177.1 bis of the CP, which regulates the crime of human trafficking, “There exists a situation of necessity or vulnerability when the person does not have another alternative, real or acceptable, but to submit itself to the abuse.” And a catastrophic situation, will take place when there has been a catastrophe, in other words, according to the dictionary, “An event which produces a great destruction or harm.”, like an earthquake or similar.
Like before, when we talked about the crimes which have as object a company secret, the penal law should be the last option for punishing a behavior which can be reprimanded too, within the civil ambit. In this case, the norms which should be applied with general character are the Law of Disloyal Competence and the Law of Defense of the Competence. Thus, reserving the penal punishments, to all those behaviors which surpass the civil ambit due to their gravity.
– Article 282:
The article 282 says:
“Article 282:
Shall be punished with the punishment of imprisonment from six months to one year or fine from twelve to twenty-four months the manufacturers or traders who, in their offers or advertisements of products or services, make false allegations or manifest uncertain characteristics about them, in a way that the can cause a grave and manifest damage to the consumers, without prejudice of the punishments which correspond to apply for committing other crimes.”
The legal good protected by the article 282 is, like in the previous cases, the correct working of the market of product and services or the loyal competence among the companies.
The first we observe analyzing the article 282 is that, it is a special own crime, for it can be only committed by the traders or manufacturers of a product or service.
The typical behavior consists in making false allegations or manifesting uncertain characteristics about products or services, on the advertisements or offers about them, in a way that can be caused a grave and manifest damage to the consumers.
Regarding the subjective element of the type, it is a malicious crime, in which the trader or manufacturer should know the falseness or the uncertainty of its manifestations in relation to a product or service.
In this crime, we should also stress the subsidiary character of the penal law, again only punishing the behaviors which due to their gravity surpass the boundaries of the civil ambit. In this case, two norms are the relevant, the General Law of Advertisements and the Law of Disloyal Competence, both containing examples of illicit advertisements and establishing the different actions which may be exercised against them.
– Article 282 bis:
In the article 282 bis is regulated the crime which the doctrine has denominated “swindle of investors”. Though, in reality more than a modality of swindle, it is a crime based on the lack of fulfillment of the duties of information established for guaranteeing the transparency of the stock market.
The article 282 bis says:
“Article 282 bis:
Whoever, as managers in fact or by right of a company issuing stock negotiated in the stock market, forge the economic-financial information contained in the financial product issuance brochures or in the information which the company has to publish or spread according to the legislation of the stock market about its resources, activities and present and future business, with the purpose of attracting investors or depositors, transferring any type of financial asset, or obtaining finance by any means, shall be punished with the punishment of imprisonment from one to four years, without prejudice of the established in the article 308 of this Code.
In the event that the investment, finance, deposit, or transfer of the financial asset is obtained, causing a damage to the investor, depositor, acquirer of the financial assets or creditor, the punishment shall be imposed in its superior half. If the damage caused is of notorious gravity, the punishment imposed shall be from one to six years of imprisonment and fine from six to twelve months.”
The legal good protected by this precept is, “the right of those who operate in those markets to the transparency and to receive truthful information by the issuing legal entities of stock negotiated in the stock market.” (Spanish Supreme Court´s sentence of 22 July 2019)
The first that we observe analyzing this article 282 bis is that, the crime of swindle of investors is a special own crime, for it can be only committed by the managers in fact or by right of a company which issues stock negotiated in a stock market. Managers by right of a company are those who have been appointed as such, while a manager in fact is “the person who in the reality of the traffic carries out without title, or with an extinguished or null and void one, or with another title, the functions of an administrator, like, in its case, the person under which instructions act the managers of the society” (art. 236.3 of the Spanish Law of Corporations).
The typical action consists in, forging the economic-financial information contained in the issuing brochures of any financial instruments or the information about its resources that the company shall publish and spread according to the legislation regulating the stock market. A good example, is the “Informative Brochure”, that the public limited companies should elaborate and the National Securities Market Commission (the ‘CNMV’), as a previous and indispensable requisite for being able to make a public offer of subscription (art. 34 and art. 36 Law on the Securities Market). In this way, the brochures have been shaped as an essential element for informing the investors, being of help as basis for deciding whether to subscribe the stock or not. The importance of the brochure is so great, that the own Law on the Securities Market establishes in its article 38 the responsibility for the information which appears in the brochure, and obliges the brochure´s author to declare that the data are truth and that there has not been omitted facts which by their nature might change its scope.
As subjective elements of the type, we should mention that we are before a malicious crime, in which, besides, it is demanded the intention of attracting investors or depositors, transferring any kind of financial asset or obtaining finance by any means. This transforms the crime of the article 282 bis, into a crime of tendency and anticipated consummation, for the crime is consummated as soon as the company´s economic-financial information is forged, without mattering whether the sought result is achieved.
Notwithstanding the above, if as consequence of the forging the sought result achieved, and besides, it is caused a damage to the investor, depositor, acquirer of the financial asset or creditor, the punishment shall be imposed in its superior half, transforming this aggravated subtype, of the second paragraph of the article 282 bis, into a crime of result. And if the damage caused was of notorious gravity, the punishments would be of imprisonment from one to six years, and of fine from six to twelve months.
In order to sum up the above, we can quate the Spanish National High Court´s sentence number 2351/2020: “In other words, following the doctrine marked by the Spanish Supreme Court´s sentence of 22 July 2019, the important of the penal type is not to publish false data, but rather to forge the economic-financial information; expressed in another way, the crime is not aimed at punishing who spread the false information, but who forge the resources, the activities or the present and future business of a company. Nevertheless, for concurring the crime, it is necessary that the false information:
a) Has to be referred to the issuing company of stock negotiated in the stock market.
b) Has to be information contained in the issuing brochures of any financial instrument and,
c) Has to be information that the public entity should publish or spread according to the legislation of the stock market.
– It is also necessary the malice which should comprehend the falseness of the information and an aiming element consisting in obtaining a contribution of capital.
However, unlike the article 290 of the CP, it is not demanded that the information should be suitable to cause a damage in the investor or financial backer; nevertheless, it has to be understood that, like in general happens with the basic crime of documental forgery, the gross forgeries are excluded for not being suitable to alter the legal traffic, being necessary to appreciate a minimum capacity of the forged information to attract investment or credit.”
The sentence quoted pertains to the “Pescanova case”, and it is interesting not only for the importance of the company implicated, but also for the analysis that it makes regarding other aspects related with the crime of swindle of investors of the article 282 bis. I am referring, to the way in which it relates the crimes to which it ends convicting, establishing that there is a medial concurrence of crimes, between the crime of forgery of mercantile document (art. 392 CP), the crime of swindle (art. 248 CP), the crime of forgery of annual accounts (art. 290 CP) and the crime of swindle of investors (art. 282 bis). The Spanish National High Court´s sentence 2351/2020 says: “In the proven facts of the present resolution, has been adopted that idea adapting it to the case; in other words, what has been said is, precisely, what in the proven facts of the sentence of the Forum case was not proven, this is, that for attracting investors (art. 282 bis), it was necessary to convince them of the good economic situation of the Company (art. 290), and this required, previously, to get money from banks using nonexistent contracts (art. 392 and 248).
Therefore, in the present case does concur the point of departure to which the indicated sentence referred, with two particularities which do not impede its application:
– On one hand, it is added a four crime in the medial concurrence of crimes, the making use of a forged mercantile document.
– On the other hand, to incorporate to the criminal circuit what was attempted with this forged mercantile document, this is, the swindle, that was not another thing that make to believe to the banks to which Pescanova asked for credits that existed an important mercantile relation with other companies (the denominated accessories) contributing with real bills which reflected data that did not exist; therefore, for all the accused who are authors or necessary cooperators of more than one crime shall operate the medial concurrence of crimes.”
– Article 283:
In the article 283, we find the other side of the coin of the crime of fraud of electric or analogous fluids, if in the latter it is the consumer who tries to defraud the supplying companies altering a measuring device, in the former are the own supplying companies which tamper with the measuring device in order to invoice more to the consumer, what transforms it into a special own crime, which only can be committed by the supplying companies.
The article 283 says:
“Article 283:
Shall be imposed the punishments of imprisonment from six months to one year and fine from six to eighteen months to those who, damaging the consumer, invoice more for products or services whose cost or price is measure by automatic devices, through the alteration or manipulation of them.”
In this case, the legal good protected by the norm is the consumers´ right to pay for the services effectively received and not more, thus, existing a perfect correlation between the information received by the supplying company regarding the consumption, and the real consumption.
The typical behavior consists in invoicing more for the services or products supplies through measuring devices, tampering with them. A good example, is to alter the device which measures the consumption of electricity or water.
The subjective type of the crime, is constituted by a malicious behavior, which, besides, demands its realization damaging a consumer, transforming it into a crime of tendency and of anticipated consummation. It is not necessary, therefore, a real damage to the consumer, being enough with a behavior suitable to cause a damage to the consumer, for understanding the type has been consummated.
– Article 284:
The article 284 is formed by three points, a first where are described three typical behaviors, and a second and third, which are two aggravated subtypes which depend on different circumstances.
Like before, the legal good protected by the precept in the correct working of the market of goods and services.
The article 284 says:
“Article 284:
1. Shall be imposed the punishment of imprisonment from six months to six years, fine from two to five years, or of threefold the benefit obtained or favored, or of the damages avoided, if the resulting amount was greater, and special disqualification for intervening in the financial market as actor, agent or mediator or informer for a period from two to five years, to those whoever:
1º Employing violence, threat, deception or any other trick, alter the prices which should result from the free concurrence of products, merchandises, financial instruments, spot commodity contracts related with them, index of reference, services or any other movable or immovable property which are the object of contracting, without prejudice of the punishment which might correspond to them for the crimes committed.
2º By themselves, in a direct or indirect way or through a means of communication, through internet or the use of information and communication technologies, or by any other means, spread news or rumors or transmit false or deceptive signals about persons or companies, knowingly offering wholly or partly false data with the aim of altering or preserving the market price of a financial instrument or a related spot commodity contract or manipulating the calculation of an index of reference, when they obtain, for themselves or a third party, a benefit, always that any of the following circumstances concur:
a) that such benefit is greater than two hundred fifty thousand euros or is caused a prejudice of identical amount;
b) that the amount of the funds employed is greater than two million of euros;
c) that is caused a grave impact to the integrity of the market.
3º Carry out transactions, transmit false or deceptive signals, or give orders of operation susceptible of proportionate false or deceptive hints about the offer, the supply, the demand or the price of a financial instrument, a related spot commodity contract or index of reference, or ensure to themselves, using the same information, by themselves or in concert with others, a dominant position in the market of such instruments or contracts with the aim of fixing their prices at anormal or artificial levels, always that any of the following circumstances concur:
a) that as consequence of the behavior they obtain, for themselves or a third, a benefit greater than two hundred fifty thousand euros or is caused a damage of identical amount;
b) that the amount of the funds employed was greater to two million of euros;
c) that is caused a grave impact to the integrity of the market.
2. Shall be imposed the punishment in its superior half if any of the following circumstances concur:
1ª That the subject is habitually dedicated to the above abusive practices.
2ª That the benefit obtained, the lost avoided or the damage caused is of notorious importance.
3. If the person liable of the fact is a worker or employee of the company of services of investment, entity of credit, supervisory or regulating authority, or governing entity of regulated markets or centers of negotiation, the punishments shall be imposed in their superior half.”
Article 284.1:
The first of the typical behaviors described in this first point consists in, “1º Employing violence, threat, deception or any other trick, alter the prices which should result from the free concurrence of products, merchandises, financial instruments, spot commodity contracts related with them, index of reference, services or any other movable or immovable property which are the object of contracting, without prejudice of the punishment which might correspond to them for the crimes committed.”
According to the above, we must consider this crime as a crime of result, it is demanded that the mentioned commissive means must alter the prices which otherwise should result from the concurrence of the products in the market. The commissive means are an open list, for, although at the beginning are mentioned the violence, threat or deception, subsequently is added “or any other trick”, thereby, the legislator has left open the door to other ways of commission always that is produced the result mentioned in type. Pay attention to the fact, that the type ends establishing a concurrence of crimes between the described in the first point and those which might constitute the means employed to commit it, thus, the more logical is that, there exists a relation of medial concurrence between them (art. 77 CP). In the case that, the employed means is the violence, there may exist a medial concurrence of crimes between the crime of injuries (art. 147 CP) and the crime of the article 284, the same happens if the employed means are threats (art. 169 CP), or deceptions, which may constitute a crime of swindle (art. 248 CP).
The second of the typical behaviors is, “2º By themselves, in a direct or indirect way or through a means of communication, through internet or the use of information and communication technologies, or by any other means, spread news or rumors or transmit false or deceptive signals about persons or companies, knowingly offering wholly or partly false data with the aim of altering or preserving the market price of a financial instrument or a related spot commodity contract or manipulating the calculation of an index of reference, when they obtain, for themselves or a third party, a benefit, always that any of the following circumstances concur:
a) that such benefit is greater than two hundred fifty thousand euros or is caused a prejudice of identical amount;
b) that the amount of the funds employed is greater than two million of euros;
c) that is caused a grave impact to the integrity of the market.”
We see, how the legislator tries to comprehend, like in the previous case, all the possible commissive means, it says “in a direct or indirect way”, therefore referring itself to the possibility of being directly committed the crime by the active subject or through a third party, thus, being applicable the rules through which is established the authorship of the article 28 CP, and later “through a means of communication, internet or the use of technologies of information or communication, or any other means”, therefore being covered any kind of technology. This means should be employed for spreading rumors or false news, what can be also considered a crime of slanders or calumnies, if it was not for the aim sought, which is “altering or preserving the market price of a financial instrument or a related spot commodity contract or manipulating the calculation of an index of reference.” This last element, the aim sought, places us within the subjective ambit of the crime, in principle, transforming this crime into a crime of tendency and anticipated consummation. However, we cannot consider it as such, since later it is added, “when they obtain, for themselves or a third party, a benefit”, therefore, it is without any doubt a crime of result.
Besides, later it is added that one of the following requisites shall concur: A benefit of more than 250.000 euros, what confirms the hypothesis that this is a crime of result; That the amount of the funds employed is more than 2 million euros, I understand that it is referring to the cost of the means employed, for example contracting media for spreading the rumor or false news, or; That a grave impact in the integrity of the market is caused, a circumstance which will be assessed by the court or judge trying the facts.
The third and the last of the behaviors punishes whoever, “3º Carry out transactions, transmit false or deceptive signals, or give orders of operation susceptible of proportionate false or deceptive hints about the offer, the supply, the demand or the price of a financial instrument, a related spot commodity contract or index of reference, or ensure to themselves, using the same information, by themselves or in concert with others, a dominant position in the market of such instruments or contracts with the aim of fixing their prices at anormal or artificial levels, always that any of the following circumstances concur:
a) that as consequence of the behavior they obtain, for themselves or a third, a benefit greater than two hundred fifty thousand euros or is caused a damage of identical amount;
b) that the amount of the funds employed was greater to two million of euros;
c) that is caused a grave impact to the integrity of the market.”
We can observe, that there can be a great variety of means employed, but the end will be always the same, “the aim of fixing their prices at anormal or artificial levels”. Like before, this aim, would transform the type into a crime of tendency and anticipated consummation, but later it demands the concurrence of one of three circumstances: A benefit of more than 250.000 euros or a damage of the same amount; That the amount of the funds employed is of more than 2 millions of euros; That a grave impact is caused into the integrity of the market. The three of them seem to convert the type into a crime of result.
Article 284.2:
Like we said before, in the second point of the article 284 it is established an aggravated subtype, since the punishments shall be imposed in their superior half, if: The active subject is habitually dedicated to the abusive practices, or; The benefit obtained, the loss avoided or damaged caused is of notorious importance.
Article 284.3:
Besides, in the third point, it is established another aggravated subtype, the concurrence of the circumstances mentioned in it, shall provoke the imposition of the punishment in its superior half. This time, they depend on a quality of the active subject, who shall be “a worker or employee of the company of services of investment, entity of credit, supervisory or regulating authority, or governing entity of regulated markets or centers of negotiation.”
The question which may arise now is, what happens if one of the circumstances of the article 284.2 concur along one of the article 284.3? In my opinion, the Judge or Court should respect the limit established by both precepts, in other words, the punishments should be imposed in their superior half, but in any case, they are going to be able to take into account the concurrence of both circumstances when the moment of determining the punishment comes.
Like other crimes regulated in this section, there exists a parallel civil and mercantile regulation concerning competence and which overlaps with the provisions of this Penal Code, we are referring to the Law of Defense of the Competence, Law on the Security Market and the Law of Disloyal Competence, being reserved to the penal ambit all those behaviors which due to their gravity surpass the civil boundaries.
– Article 285:
The article 285 has as object the privileged information, since it influences in a great degree the buying and selling of financial instruments. Therefore, the legal good protected by the norm, is the correct working of the stock market. The article 285 says:
“Article 285.
1. Whoever directly or indirectly or through an intermediary carry out acts of acquisition, transmission or cession of a financial instrument, or of cancellation or modification of an order relative to a financial instrument, using privileged information to which he had reserved access in the terms of the point 4, or recommend to a third the use of such privileged information for some of these acts, shall be punished with the punishment of imprisonment from six months to six years, fine from two to five years, or of threefold the benefit obtained or favored or the damages avoided if the resulting amount is bigger, and special disqualification for exercising the profession or activity from two to five years, always that one of these circumstances concur:
a) that, as consequence of the behavior obtains, for him or a third party, a benefit of more than five hundred thousand euros or causes a damage of the same amount;
b) that the value of the financial instruments employed is of more than two millions of euros;
c) that a grave impact is caused to the integrity of the market.
2. The punishment shall be imposed in its superior half if any of the following circumstances concur:
1ª That the subject is habitually dedicated to the above practices of operations with privileged information.
2ª That benefit obtained, the loss avoided or the prejudice caused is of notorious importance.
3. The punishments established in this article shall be imposed, in their respective cases, in their superior half if the person liable of the fact is a worker or employee of a company of services of investment, entity of credit, supervising or regulating authority, or governing entity of regulated markets or centers of negotiation.
4. For the purpose of this article, it is understood that has reserved access to the privileged information whoever is a member of the organs of administration, management or supervision of the issuer or of the participant of the market of rights of issuing, whoever participates in the capital of the issuer or of the participant of the market of rights of issuing, whoever knows as occasion of the exercise of its professional or company activity, or in the performance of its duties, and whoever obtains it through a criminal activity.
5. The same punishments established in this article shall be imposed when the person liable of the facts, without having access to the privileged information, obtains it through a different means of those established in the previous point and uses it knowing that it is privileged information.”
Let us start analyzing the said by the article 285. The first that it says is that, it may be committed “directly or indirectly or through an intermediary”, it will be committed directly, when the own active subject carries out the behavior punished in the type, it will be committed indirectly, when the typical behavior is carried out under the influence, supervision or control of another, and the same is going to happen an intermediary is used. According to the dictionary, an intermediary is, “A person who, seeming to act on one´s own behalf, intervenes in a legal act on behalf of or to the benefit of another.” Sincerely, I do not see much difference between committing the facts indirectly, or through an intermediary. In any case, this discussion is simplified by the article 28 of the CP, where are established the general rules to consider a person as author of a crime, being always applicable.
The second that is done by this article 285, is to describe the typical behavior, “… to carry out acts of acquisition, transmission or cession of a financial instrument, or of cancellation or modification of an order relative to a financial instrument, using privileged information to which he had reserved access in the terms of the point 4, or recommend to a third the use of such privileged information for some of these acts”. A joint lecture, of what we have seen above and of the mentioned point 4, converts this crime into a special own crime, which can be only committed by the persons of this point 4, “whoever is a member of the organs of administration, management or supervision of the issuer or of the participant of the market of rights of issuing, whoever participates in the capital of the issuer or of the participant of the market of rights of issuing, whoever knows as occasion of the exercise of its professional or company activity, or in the performance of its duties, and whoever obtains it through a criminal activity.” But careful, because the point five of this article 285, opens the possibility of its commission by any person who, without having reserved access to the privileged information knows that it is privileged information.
The next thing we should analyze, is what we should understand by privileged information. We find its definition in the article 7.1.a) of the Regulation (EU) Nº 596/2014 about the abuse of market, this is: “the information of concrete character which has not been made public, that is directly or indirectly referred to one or various issuers or one or various financial instruments or its financial derivative and which, of being made public, might substantially influence the prices of such instruments or of the derived instruments related with them.” Here, again, we shall emphasize, the character of last option of the penal law, for the article 285 will be only applicable when the behavior punished exceeds the limits of the civil and mercantile legislation of the Law of Defense of the Competence, the Law of Disloyal Competence, the Law on the Securities Market y and the Regulation (EU) Nº 596/2014 about the abuse of market.
The Spanish High National Court´s sentence number 744/2014, gives us the characteristic elements of the privileged information: “In other words, the elements which define the privileged information are the following:
1.- That it is directly or indirectly referred to negotiable stock or financial instruments or its issuers.
2.- It cannot be of concrete character (precise).
3.- It is not public.
4.- With the capacity of substantially influencing the market price of the stock or financial instruments to which is referred.
This last element is the one which converts in relevant the privileged information for the purpose of integrating the penal type of the article 285 of the Penal Code.”
The next that we know reading the article 285, besides the punishments, are the circumstances that motivates the application of the type, with the concurrence of one of them it is enough, these are three: “a) that, as consequence of the behavior obtains, for him or a third party, a benefit of more than five hundred thousand euros or causes a damage of the same amount”, to which should be added, “or avoided a loss of five hundred thousand euros”, in any case, when this requisite motivates the application of the type, it is going to be considered a crime of result; “b) that the value of the financial instruments employed is of more than two millions of euros”, this requisites is referring to the financial instruments which has been the object of the typical action, a requisite which transforms the crime into a crime of mere activity, for it is not demanded a result, and; “c) that a grave impact is caused to the integrity of the market.”, as we have seen in other cases, the application of this requisite will be conditioned by the criterion of the judge or court which applies it, nevertheless, here we must consider the type as a crime of result.
Of this article only left to comment the two aggravated subtypes which it contains, the established in its second and third point. The former refers to alien circumstances to the author of the facts:
“1ª That the subject is habitually dedicated to the above practices of operations with privileged information.
2ª That benefit obtained, the loss avoided or the prejudice caused is of notorious importance.”
While the second is referred to a personal feature of the author of the facts, “if the person liable of the fact is a worker or employee of a company of services of investment, entity of credit, supervising or regulating authority, or governing entity of regulated markets or centers of negotiation.” Therefore, its application will convert the type into a special own crime, making its application incompatible with the criminal type of the point 5, but perfectly compatible, with the description of reserved access to privileged information of the point 4.
In the case that the aggravating circumstances of the point 3 and 4 concur at the same time, the limit for the punishment established in both points shall be maintained, in other words, the punishment shall be imposed in its superior half, but, the judge or court shall take into account the concurrence of both aggravating factors in order to modulate the punishment.
It is worth stating that, this is a malicious crime in any of its modalities.
– Article 285 bis:
After the article 285, where mainly it is punished the use of privileged information, the next article that we find is the article 285 bis, which punishes the behaviors not included in the article 285, what provides it with a subsidiary character, this is only preoccupied in the disclosure of privileged information. The article 285 bis says:
“Article 285 bis:
Outside the cases established in the previous article, whoever possesses privileged information and reveals it outside the normal exercise of its job, profession or functions, putting into danger the integrity of the market or the confidence of the investors, shall be punished with a punishment of imprisonment from six months to four years, fine from twelve to twenty-four months and special disqualification for exercising the profession or activity from one to three years.
For the purpose of the established in this article, shall be included the disclosure of privileged information in a prospection of a market when it has been done without observing the requisites established in the European normative regarding markets and financial instruments.”
Let us now study its content:
– “Outside the cases established in the previous article…”: In other words, its application is subsidiary with respect to the established in the article 285.
– “…whoever possesses privileged information and reveals it outside the normal exercise of its job, profession or functions…”: Subsidiary character, because the object of both articles is the same, the privileged information. The typical action, consists in possessing and revealing privileged information, but always of the normal exercise of a job, profession or functions, thus, not all possession and revelation of privileged information is considered typical, but only those which surpass the limits marked by the usual exercise of a job, profession or function, besides, for the sake of clarity, it is not enough with possessing the information, it has to be also disclosed. The question is, is this a special own crime which can be only committed by those who have access to the privileged information as consequence of its job, profession or functions, and surpass the limits marked by them? It does not seem to be what the precept says, but rather that it is only going to be licit the possession and disclosure of privileged information when it is done protected by a profession, function or job.
– “…putting into danger the integrity of the market or the confidence of the investors…”: This indicates that, it is a crime of danger or risk, being enough with having a suitable behavior that is able to damage the integrity of the market or the confidence in the investors, in order to punish it, in other words, the legislator has advanced the walls of penal protection for punishing the putting into danger of a determined legal good, in this case the integrity of the market and the confidence of the investors.
– The type does not mention its commission by imprudence, so it is a pure malicious crime.
– Article 285 ter:
The article 285 ter says:
“Article 285 ter.
The previsions of the preceding precepts shall be extended to the financial instruments, contracts, behaviors, operations and orders established in the European and Spanish normative regarding market and financial instruments”
It is referring to the elements for whose negotiation can be relevant the use of privileged information. Regarding the European and Spanish normative, we can mention at least two: the Law on the Securities Market and the Regulation (EU) Nº 596/2014 about the abuse of market.
– Article 285 quater:
The article 285 quater says:
“Article 285 quater.
The provocation, the conspiration and proposal for committing the crimes established from the article 284 to 285 bis shall be punished, respectively, with the inferior punishment in one or two degrees.”
What the article 285 quarter is doing, is to make effective the established in the article 17.1 CP, according to which “The conspiration and proposal to commit a crime shall be only punished in the special cases established in the law.”
– Article 286:
The article 286 was the object of polemic, but it was not its fault, but the fault of the article 270. A doctrinal sector punished the broadcast of football matches in public establishments as a crime against the intellectual property (art. 270 CP), considering the article 286 as a secondary actor, either in a concurrence of norms or crimes with the 270. For others, on the contrary, this kind of behaviors could never be punished as a crime against the intellectual property, but as a crime against the consumers and users of the article 286, recovering this precept the limelight stolen by the article 270. The question, was not only a doctrinal one, for there exists a substantial difference between the punishment of the article 270 and the punishment of the article 286, being the former much more punished. The question was solved by the Spanish Supreme Court´s sentence number 2315/2022, which dismisses the possibility of considering the football matches as a work protected by the Law of Intellectual Property and therefore, outside the scope of the article 270, though dismissing too, the whole licitness of the behavior, for it considered that it fits in the article 286.4 CP. The mentioned sentence says: “The Chamber does not question that in the concept of “performances” are included the audiovisual recordings. The legal protection of the rights derived from its exhibition is explicitly proclaimed, as we have already pointed out, in the articles 120 and following of the Intellectual Property Act. The problem consists in deciding if the infringement of the exclusive rights which are generated for the broadcasting of a football match of the first or second divisions or of the cup fits in the article 270.1 CP, according to the notion of “literary, artistic or scientific work or performance”. And the answer must be negative.”
Now, let us return too the limelight to the article 286. The article 286 says:
“Article 286.
1. Shall be punished with the punishment of imprisonment from six months to two years and fine from six to twenty-four months whoever, without consent of the provider of the services and with commercial ends, facilitates the intelligible access to a television or sound broadcasting service, to interactive services provided remotely by electronic means, or provides unconditional access to them, considered as independent service, through:
1º The manufacture, importation, distribution, put at disposal by electronic means, selling, renting, or possession of any equipment or computer program, not authorized in other State member of the European Union, design or adapted to make possible such access.
2º The installation, maintenance or substitution of the devices or computer programs mentioned in the 1º paragraph.
2. With the same punishment shall be punished whoever, with profit-making intention, alters or duplicates the identifying number of telecommunication devices, or trades with devices which have suffered fraudulent alteration.
3. Whoever, without profit-making intention, facilitates to third parties the access described in the point 1, or by means of a public communication, provides with information a plurality of persons about the way of achieving the non-authorized access to a service or the use of a device or program, of the expressed in the same point 1, inciting to acquire them, shall be punished with the punishment established in it.
4. Whoever uses the devices or programs which allows the non-authorized access to services of conditional access or telecommunication devices, shall be punished with the punishment established in the article 255 of this Code regardless of the amount defrauded.”
Article 286.1:
The first behavior consists in, without the consent of the provider of services, to facilitate “the intelligible access to a television or sound broadcasting service, to interactive services provided remotely by electronic means, or provides unconditional access to them, considered as independent service, through:
1º The manufacture, importation, distribution, put at disposal by electronic means, selling, renting, or possession of any equipment or computer program, not authorized in other State member of the European Union, design or adapted to make possible such access.
2º The installation, maintenance or substitution of the devices or computer programs mentioned in the 1º paragraph.”
It is a malicious crime, besides, the active subject must carry out the facts with commercial ends, in other words, with the intention of obtaining a direct or indirect economic benefit. This last characteristic converts the type into a crime of tendency, thereby, it is not necessary the obtainment of such benefits for understanding consummated the crime, being enough with being that the intention of the author.
Article 286.2:
This point punishes, with the same punishments that the previous point, whoever “alters or duplicates the identifying number of telecommunication devices, or trades with devices which have suffered fraudulent alteration.”
Like in the previous case, besides, being a malicious crime, the type demands a specific intention, the profit-making intention, equivalent to the commercial ends of the previous point. In this way, the active subject must seek the obtention of a direct or indirect benefit with its criminal behavior. Like before, this requisite transforms the type into a crime of anticipated consummation or of tendency, in other words, it is not necessary the obtention of a real direct or indirect benefit for punishing the facts, being enough, with proving that the intention of the active subject was to obtain such benefits.
Article 286.3:
This third point punishes whoever, “without profit-making intention, facilitates to third parties the access described in the point 1, or by means of a public communication, provides with information a plurality of persons about the way of achieving the non-authorized access to a service or the use of a device or program, of the expressed in the same point 1, inciting to acquire them, shall be punished with the punishment established in it.”
Pay attention to, how the exclusion of the profit-making intention, has supposed the exclusion of the punishment of imprisonment, if we compare the behavior punished in this third point with the punished in the first, since in both cases is punished the same behavior, though, later, this third point adds a new element, the use of a public communication, whether commercial or not in order to provide information about how to have access to the services or programs punished in the first point.
We are before a crime of mere activity, either in the case of facilitating access or in the case of inciting through a public communication, for the type does not demand any result for punishing the facts.
Besides, it is a malicious crime.
Article 286.4:
This point punishes “Whoever uses the devices or programs which allows the non-authorized access to services of conditional access or telecommunication devices, shall be punished with the punishment established in the article 255 of this Code regardless of the amount defrauded.”
As we have said before, this point is known for being the applied to the behaviors which consists in the broadcasting of a football match in public establishments. This makes this behavior a minor offence, because it imposes the punishments of the article 255 CP, which due to its imposition of a punishment of fine of three months makes applicable the art. 13.4 CP. The question is relevant, because the application of this third point makes possible the trying of this crime, through the rules of the Procedure for the Trial of Ninor Offences (art. 962 – art. 982 LECrim).
Víctor López Camacho.
Twitter: @victorsuperlope.
Más en mi website: www.victorlopezcamacho.com