Recording a third-party conversation and spreading it through social networks without the permission of those involved is a crime. This is the case of a woman who was sentenced to one year in prison for recording the telephone conversation that her then-husband had with their two common minor children, on April 13, 2021. At that time the couple was in the process of divorce and, that same day at night, they shared the recording in a WhatsApp group that included the 23 fathers and mothers of their children’s classmates.
The husband denounced the facts and the Criminal Court number 2 of Cuenca sentenced the woman to one year in prison, in November 2022, for a crime of discovery and disclosure of secrets, in accordance with article 197.1 of the Penal Code. In addition, she was fined 1,800 euros in addition to the payment of legal costs.
The situation did not stop there. The private prosecution appealed the sentence before the Provincial Court of Cuenca. They requested that the sentence imposed by the Court be revoked and aggravated by applying “aggravated types 3 and 5” of the aforementioned article of the Penal Code.
Article 197.1 indicates that whoever “seizes their papers, letters, email messages or any other documents or personal effects, intercepts their telecommunications or uses technical devices for listening, transmission, recording or reproduction of sound or image, or any other communication signal, will be punished with prison terms of one to four years and a fine of twelve to twenty-four months”. And the condemned woman recorded the conversation.
Section 3 of this article indicates that “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”, and the convicted person disseminated the recording. That is why the private prosecution appealed the sentence, applying the aggravated sentence of this section, in addition to 5.
This last section states that when the facts “affect personal data that reveal 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.” In the sentence, handed down on May 23, the Provincial Court partially upheld the husband’s appeal and ordered the defendant to compensate him with 500 euros for the moral damages caused.
Would disseminating a screenshot of a conversation on social networks be a crime? The law firm, ‘El Rincón Jurídico’ detailed, on its website, that it would depend on the case because “there are no clear limits”, since “the right to honor, privacy and self-image and the right to freedom of expression and information” also come into play.
