- By Paul SITGES
Within the articles of the Criminal Code, in its X Title in reference to crimes that undermine the privacy, the right to one’s image and the inviolability of the home, we find as well the chapter about the discovery and disclosure of secrets, headed by the article 197.
More specifically, in the seventh point of said article, what is intended to be analysed here is being regulated: the crime of disseminating/sharing images or audio-visual recordings to third parties without the proper authorization of the affected person and, in this sense, the article establishes the following (translated from Spanish):
“Anyone who, without authorization of the affected person, disseminates, reveals or transfers to third parties’ images or audio-visual recordings of the one that they have obtained from with their consent in a domicile or in any other place out of the reach of the eyes of third parties, when the disclosure seriously undermines the personal privacy of that person.”
Nowadays, as technology keeps is on the rise and keeps being upgraded, it is increasingly easier to disseminate images, articles, screenshots from the phone or the like, which we can find on the networks and share them with other people by a simple click. This ease of sending what we propose from our mobile phone or from our computer, although it can be an ideal and fast communication tool, is also a means of dissemination that can exceed the limits of the right to privacy of others.
It should be noted that the precept does not specify that the typical conduct is necessarily the dissemination of images of a marked sexual nature, but in practice, it is the most predominant assumption. Article 197.7 refers to content whose disclosure seriously undermines personal privacy, hence all that disseminated sexual content is of course the core of privacy, but not the only possible scenario.
The core of this typical conduct does not consist in obtaining the images but to share them – whilst obtained with the consent of the victim – and that, as a consequence of this dissemination, it severely affects their intimacy.
A clear example of the application of this article is found in the Supreme Court Sentence 70/2020, of February 24, (“Sentencia del Tribunal Supremo”) which convicts a crime of article 197.7 of the Penal Code in a case of referral to a third party of a photo of a nude that the affected person had voluntarily sent to the person who disseminated the images. The aforementioned resolution resolves some of the doubts that have been raised in similar controversial cases.
Does the precept only cover those cases in which the subject who disseminates the images is the one who made the photograph or video?
The answer is no, since the nuclear action consists of disseminating images obtained with the consent of the victim in a home or in any other place out of the reach of third parties.
As established in the prior Judgment, “« obtain »[…] is synonymous with reaching, achieving, achieving something, having, keeping and maintaining. It is very difficult to maintain that when these images are sent by the victim herself and are hosted on the recipient's mobile phone, in reality they are not obtained, they are not kept, they are not preserved or they are not maintained ” (Translated from Spanish). Due to this interpretation, the obtaining of the images can have very different origins, so it is understood that not only the person who takes the photograph or records the video obtains the image, but also who receives it when it is voluntarily sent by the victim, being valid any conventional means or instant messaging programs or networks.
What happens to the third parties/persons that also disseminate the images?
It is essential to limit the terms of the conduct type of article 197.7, being that third parties who are strangers to the ‘circle of trust’ in which the graphic or audio-visual material has been generated and who obtain those images without a personal connection with the victim will be generally excluded. Likewise, the aforementioned resolution establishes that "The chained dissemination of images obtained from the uncontrolled propagation in telematic networks, carried out by third parties located outside the relationship of trust that justifies the delivery, is outside the criminal law” (Translated from Spanish).
Notwithstanding the foregoing, even if no part was taken in the discovery or capture of the images, those who, with knowledge of their illicit origin, disseminate, reveal, share or transfer them to third parties will also be punished, although with a lower prison judgment.
Therefore, the active subject of this criminal typology is the one to whom the image is voluntarily sent and, subsequently, without the will / consent of the issuer, forwards it to third parties, breaking the trust placed in him; as well as whom, knowing the illicit origin of the images, proceeds to spread them anyway.
Given that this is a practice that is usually found for sexist, discriminatory or revenge purposes, this previous criteria was adopted by the Circular of the State Attorney General's Office number 3/2017 (Circular de la Fiscalía General del Estado).
Sending a photograph of a nude expressive of your intimacy, does this action imply giving up your intimacy that represents in advance?
The answer to this question is also negative, since whoever submits the photo of their own privacy is at no time renouncing it, nor is irremediably sacrificing their privacy; the fact of sending that image is a gesture of trust to the receiver, which is broken when this picture is disseminated or spread.
Also, in relation with to what has been brought up so far, it should be noted that the fact that it is the affected person/victim the one who sent the image to the perpetrator/active subject, this itself does not imply that it creates a risk of dissemination.
When is it understood that the image has been shared?
The dissemination requirement required by the criminal type studied is fulfilled when the image or recording is sent without the express authorization of the affected person. That is, it does not matter whether the image is sent to one or more people.
This is so, given the ease with which the dissemination of this type of content is chained, it makes sense that the victim is protected in this way, regardless of all the people to whom the information (their picture without consent) has been disseminated.
In the cases where nudes are the images that have been spread, the nude itself is an expression of unequivocal personal intimacy, so there is no problem in fitting the dissemination of this type of content within the type of article 197.7. While this is certain, it is also true that it should not be forgotten that the material object of this crime is not only made up of the sharing of sexual content, but of all those images or recordings that project any manifestation of privacy/intimacy that seeks to be protected from third parties outside the space/circle of trust granted by the victim’s consent.
What penalties does the Criminal Code contemplate for disclosing intimate photographs without consent?
Finally, we review the penalty that this crime carries, with a prison sentence of three months to one year or a fine of six to twelve months.
Moreover, the penalty will be imposed in its upper half when the acts were committed by the spouse or person with a similar affective relationship (regardless of whether or not there is cohabitation), when the victim was a minor or when he or she was a person with a disability, or when the acts were committed for profit.
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