Article 199 Spanish Criminal Code: Breach of Professional Secrecy

Article 199 of the Spanish Criminal Code punishes in its first paragraph the person who discloses another’s secrets learned by reason of his employment or working relationship, and in its second the professional who, in breach of his duty of confidentiality, divulges another person’s secrets. The second paragraph is the graver: imprisonment of one to four years, a fine and professional disqualification of two to six years. It reaches doctors, lawyers, accountants, psychologists and every regulated professional, and it is the counterweight to the duty to report offences in article 262 of the Criminal Procedure Act.

Wording of Article 199 of the Spanish Criminal Code

Elements of the offence

1. A secret, that is information not publicly known whose disclosure the person concerned has an interest in preventing.
2. Knowledge acquired by reason of employment or a working relationship, in the first paragraph, or of the exercise of a profession subject to a duty of confidentiality, in the second.
3. Disclosure to a third party. Access to the information, or its use without disclosure, is not this offence.
4. Intent. Negligent disclosure is not punishable under this article, although it may generate civil and disciplinary liability.

Defence strategy

The information was not secret. The offence protects information that is genuinely reserved. Facts already public, information the person concerned had himself disclosed, and data available from a public register are outside it. The defence establishes the state of public knowledge at the time of the disclosure, which in disputes between former partners or employees is frequently decisive.

Legal duty or justification for the disclosure. Disclosure required by law is not unlawful. The duty of professionals to report offences under article 262 of the Criminal Procedure Act, the obligations of anti-money-laundering legislation, the reporting duties in child protection and compliance with a judicial order all justify it, within their own limits. The defence identifies the precise obligation relied on and shows that the disclosure did not exceed it.

Consent of the person concerned. Consent excludes the offence, and it may be express or inferred from the purpose for which the information was provided. In clinical and professional contexts the defence produces the consent documentation and the terms of the engagement, which frequently authorise communication with insurers, family members or other professionals.

The complaint requirement and the pardon. Under article 201 no prosecution may begin without the complaint of the injured party, save where the general interest or a plurality of persons is affected, and the pardon of the injured party extinguishes the action. Both points are examined at the outset, and where the relationship admits it, an agreed resolution ends the matter without a conviction that would carry professional disqualification.

• Article 467: conflict of interest by lawyers
• Article 262: duty of professionals to report offences
• Spanish Criminal Code by article
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.