Crime of Discovery and Disclosure of Secrets
Articles 197 to 201 of the Criminal Code
This criminal offense punishes conduct that seeks to or effectively damages the right to privacy, protected by Article 18 of the Constitution, both in its negative dimension (preventing access or knowledge) — excluding third-party knowledge or presence in areas of private life that the subject wishes to keep secret — and its positive dimension (sharing voluntarily) — whereby certain aspects of private life are reserved for a specific circle of people.
What behavior is punished?
The content of this offense is found between Articles 197 and 201 of the Criminal Code. The following behaviors are punishable:
Discovery of Documentary Secrets
This conduct consists of discovering secrets or violating another person’s privacy without their consent by taking possession of their papers, letters, emails, or any other personal documents or effects. The following requirements apply:
- In this case, the data must be contained in a physical medium, such as papers, letters, emails, or other personal documents or effects. These physical supports must belong to the victim (the passive subject).
- The act must be done without the consent of the data/document holder. If consent exists, the conduct would not be punishable.
- The intent must be malicious, either to discover the secrets or private matters of the person or to transmit that data to third parties. Negligent commission is not possible.
Penalties: 1 to 4 years in prison and a fine of 12 to 24 months.
Interception of Communications
This conduct involves intercepting telecommunications or using technical devices for listening, transmitting, recording, or reproducing sound, image, or any other communication signal. The aim is to capture protected data during their transmission (e.g., a phone conversation) or through secretive methods from the location where such communication occurs (e.g., recording a conversation in a room or office). Merely overhearing a conversation without technical means is not punishable — only the use of devices for capturing or storing information is.
Negligent commission is not allowed.
Penalties: 1 to 4 years in prison and a fine of 12 to 24 months.
Discovery of Secrets in Electronic Support
The punished conduct is that of someone who, without authorization, takes, uses, or modifies, to the detriment of a third party, reserved personal or family data of another person stored in computer files or electronic, telematic, or other records, either public or private. The same penalties apply to anyone who, without authorization, accesses such data by any means, or alters or uses it to the detriment of the data holder or a third party. Key considerations:
- The act of “discovering” refers to reserved data of a personal or family nature. Personal data involves identifiable individuals. Family data refers to personal data of family members, which is a redundant and unnecessary distinction. Especially sensitive data is excluded here, as it will be treated in aggravated offenses.
- The injured party must be the holder of the violated data.
- The data must be stored in specific electronic media, such as computer, electronic, or telematic files or records — either public or private — of an electronic nature.
- There must be no authorization. The data access must comply with the applicable regulations, including Regulation (EU) 2016/679 of April 27 (GDPR) and Organic Law 3/2018 on Personal Data Protection and guarantee of digital rights.
Penalties: 1 to 4 years in prison and a fine of 12 to 24 months.
