At Audacia Abogados we want you to know the crime of revealing secrets, which refers to disseminating information or material from a person that you do not want to transcend. This is done by intercepting or seizing documents without consent. In other words, broadcast videos or images are personal information of outsiders.
This crime is one of the crimes against privacy, the right to one's own image and the inviolability of the home. The right to privacy in Spain is a fundamental right that is included in the Spanish Constitution and protected by Law.
What is a secret for legal purposes?
The term secrecy in terms of the law can be anything related to a person's privacy. This is normally only known to the person or a limited group and it is up to them to decide who has access. When it is detected that this information affects the victim, it is considered a criminal offense.
What is the crime of disclosure of secrets?
The crime of discovery and disclosure of secrets is a criminal offense. Its objective is criminal disclosure of information relating to the private life of a person making himself known without his permission. Article 197 of the Penal Code deals with disciplining this case. This says the following:
1. The one who, to discover the secrets or violate the privacy of another, without their consent, seizes their papers, letters, email messages or any other documents or personal effects, intercepts their telecommunications or uses technical listening devices, transmission, recording or reproduction of sound or image, or any other communication signal, shall be punished with prison sentences of one to four years and a fine of twelve to twenty-four months.
2. The same penalties will be imposed on anyone who, without being authorised, seizes, uses or modifies, to the detriment of a third party, confidential data of a personal or family nature of another that is registered in computer, electronic or telematic files or media, or in any other type of file or public or private record. The same penalties will be imposed on whoever, without being authorized, accesses them by any means and whoever alters or uses them to the detriment of the owner of the data or a third party.
3. A prison sentence of two to five years will be imposed if the data or facts discovered or the captured images referred to in the previous numbers are disseminated, revealed or transferred to third parties.
It will be punished with prison sentences of one to three years and a fine of twelve to twenty-four months, whoever, with knowledge of its illicit origin and without having taken part in its discovery, will carry out the conduct described in the previous paragraph. .
4. The facts described in sections 1 and 2 of this article will be punished with a prison sentence of three to five years when:
a) They are committed by the persons in charge or responsible for the files, computer, electronic or telematic supports, archives or records; either
b) are carried out through the unauthorized use of the victim's personal data.
If the reserved data had been disseminated, transferred or disclosed to third parties, the penalties will be imposed in its upper half.
5. Likewise, when the facts described in the previous sections affect personal data that reveal the ideology, religion, beliefs, health, racial origin or sexual life, or the victim is a minor or a person with a disability in need of special protection, the penalties provided for in its upper half will be imposed.
6. If the acts are carried out for profit, the penalties provided for in sections 1 to 4 of this article will be imposed in its upper half. If they also affect data mentioned in the previous section, the penalty to be imposed will be imprisonment from four to seven years.
7. Anyone who, without the authorization of the affected person, disseminates, reveals or transfers to third parties images or audiovisual recordings of the one obtained with his or her consent in a home or in any other place out of sight of third parties, when disclosure seriously undermines the personal privacy of that person.
The penalty will be imposed in its upper half when the acts were committed by the spouse or by a person who is or has been linked to him by an analogous emotional relationship, even without living together, the victim was a minor or a person with a disability in need. special protection, or the acts were committed for profit.
For a crime to exist, it is necessary for the offender to violate the privacy of the victim or leak secrets. Which you can do by taking over your messages in any type of format, whether physical or digital. It also occurs if devices are installed that intercept telecommunications or by image and sound recording devices.
This is a crime of activity, because it will only take the intention of the offender to discover the secret for the crime to be committed. Therefore, there is no need for any effective disclosure of information.
The legal right protected with this crime is privacy, which is recognized in article 18 of the Spanish Constitution as a fundamental right. The victim or passive subject can be any natural person, but article 200 of the Penal Code states that he can also be a legal person.
What is punishable by the crime of discovery disclosure of secrets Penal Code is conduct for:
Having seized email messages, letters, papers or any other document or personal effects. There are also sanctions for the use of listening devices, reproducing or recording images or sounds and intercepting telecommunications.
Penalties for revealing secrets
The sanctions provided for the crime of disclosure of secrets Penal Code are: prison sentence of 1 to 4 years or a fine of 12 to 24 months. To apply this sanction, two requirements must be met:
• Not having authorization, which violates the current Data Protection Law.
• Have the clear intention of harming the victim and causing harm. What it represents willful misconduct not negligent or reckless.
• When the crime of revealing secrets is committed against a company, compensation must be demanded through civil proceedings.
Circumstances that aggravate the penalty for the crime of revealing secrets
Apparently there are different behaviors related to this crime that increase the sanction, because a more serious attack is committed against the privacy of the victim. The circumstances are as follows:
In cases where the crime is committed by people who have the possibility of accessing files, computer media, files or records of the victim due to the position they hold. The sanction in these cases is a prison sentence of between 3 and 5 years and disqualification from performing the profession may be added.
When the information obtained illegally is divulged, revealed or transferred to third parties, the prison sentence between 3 and 5 years will be imposed in its upper half.
In cases where information related to the health, beliefs, ideology, racial origin, religion or sexuality of the victim is disclosed. The penalty imposed is imprisonment between 3 and 5 years in its upper half. The same happens when the injured party is a person with a disability or a minor.
When the revelation of secrets has a solely lucrative objective for the author, a prison sentence of between 3 and 5 years is imposed in its upper half. In the event that the information revealed is related to the health, beliefs, ideology, racial origin, religion or sexuality of the victim, the penalty to be applied will be imprisonment from 4 to 7 years.
Compensation for the crime of disclosure of secrets
This is a crime of disclosure of professional secrecy, the compensation that is applied is for revealing the secrets of others. Which he knows as a consequence of the performance of his professional trade and the employment relationship he maintains with the victim.
In this case, the active subject, that is to say, the lawyer, knows the secret in a lawful way, in this case the typical conduct is disclosure or revelation. When this situation occurs, the subject has not had access to a secret content in an illicit way.
The disclosure of secrecy constitutes an aggravating circumstance because the professional who discloses it is obliged to keep professional secrecy. With this action, he does not comply with his obligation of reserve or confidentiality.
The crime of discovery and disclosure of company secrets is included in this category.
How to report the crime of disclosure of secrets?
The way to prosecute and punish the crime of discovery and disclosure of secrets is for the victim to file a complaint. It can also be done by your legal representative or it can be filed with the Public Prosecutor.
The complaint is not necessary in certain cases, such as in cases where the crime affects a plurality of people or general interests. The criminal action is extinguished in the event that the victim or legal representative pardons the perpetrator of the crime.
There are now police departments specializing in technological crimes. Which have the resources and knowledge to obtain the origin of telematic disclosures. Currently there are few crimes of this type that go unpunished, even if the perpetrator is hidden in technological mechanisms.
For the presentation of the complaint for the discovery and disclosure of secrets, it is necessary to have the advice of a good lawyer specialized in this type of criminal offense.
Now that you have all the necessary information on crimes of revealing secrets, if you find yourself in this situation, whether you are an individual or a company and you want to defend yourself, contact Audacia Abogados for a legal consultation.