DISCLOSURE OF SECRETS
These week news have referred to the condemn to a two and a half years prison for a person accused of a crime of disclosure of secrets with the aggravating circumstance of kinship. The accused had spied her wife (ex wife) mobile phone to gather evidence of her affair in order to bring it to a divorce proceeding. The judgment issued by Criminal Court 4 of Girona. Currently, (October 2015) the decision is appealed.
According to the investigations, the convicted introduced the password to the mobile downloading an email and its attachment, consisting of a photograph of his wife with a man and other application files (Line). All that without her consent.
Following the information, the judgment states "it is not certified that the defendant did diffusion or transfer of such messages to third parties and has not been proven that the defendant performed acts with the intention to impair the integrity or cause fear to the plaintiff". In addition, "there was an eavesdropping or merely a fleeting glimpse of private content, but has made the defendant with adequate material support for content acquisition." The condemned alleged that the phone was for family use and therefore he knew the passwords. This is one of the reasons for the appeal used by the defense lawyer, arguing that the right to privacy requires at least a certain protection measures not taken by woman.
The judgment has generated controversy throughout Spain due to the proliferation of applications that facilitate tracking profiles chats and social networks between spouses or domestic partners.
According to Supreme Court Judge Mr. Miguel Colmenero Menéndez de Luarca. "you cannot say, in general terms, that pick up the phone of a person and look at the Whatsapp is a crime. There must be a purpose. There are socially accepted behaviors of people who share the contents of your emails that would not enter into the typical behavior of the crime. But this changes when the outcome seeks to discover another one´s secrets and, due to this, privacy is affected. ".
What does the Criminal Code says regarding the crime of disclosure of secrets?. In article 197.1 : "Whoever that discover the secrets or violate the privacy of another one without his consent, seizes his papers, letters, e-mails or any other documents or personal effects, its telecommunications, intercepts or uses tricks technical listening, transmission, recording or reproduction of sound or image, or other communication signal, shall be punished with imprisonment of one to four years and a fine of twelve to twenty four months.". An aggravating provides: " when the facts were committed by a spouse or person who is or has been connected to it by an analogous relationship." .
As in all Criminal Law matters, we must determine first which is the legally protected interest. In this case, individual privacy. This leads us to define the concept of "secret", which exceeds the mere knowledge available to only few people. It must be closely linked to privacy, which is what is protected. In accordance, the judgment of the Supreme Court of 10 June 2011 (among others) that says: "The idea of secrecy in the art 197.1º Criminal Code is conceptually inseparable from intimacy: the own reserved sphere against the action and knowledge of others”. In this judgment, the Supreme Court referred to a university professor who acceded to emails from other teachers without permission. The defendant wanted information related to performances of the job, although private but not intimate. And even if he occasionally invaded a sphere of privacy of a message, such action would not be framed within the crime because, on top of the objective element (invasion of privacy) a subjective element is required which is the "intention", meaning the action executed in order to invade the intimacy of the other.
Judgment of Madrid High Court of 12 November 2012 12/11/2012 states, "just grabbing the papers or letters, consumes the crime, as long as those actions are aimed to discover the secrets or infringe privacy of others.". The resolution considers, on one hand, that the mere seizure is sufficient to consummate the crime and, on the other hand says that this action should be directed to disclosure the secrets and infringement of privacy.
The most important in these cases is the invasion of the private sphere and the intention to cross that private area.