Article 417 Spanish Criminal Code: Disclosure of official secrets

Article 417 punishes the public authority or official who reveals secrets or information obtained by reason of the office which are not to be divulged, with an aggravated frame where serious harm results and a separate frame where the secrets belong to a private individual.

Wording of Article 417 of the Spanish Criminal Code

Elements of the offence

1. The status of public authority or official.
2. Knowledge of the secret or information obtained by reason of the office or position.
3. That the information be one which is not to be divulged, which requires a legal or regulatory basis for that reservation.
4. An act of disclosure, and, for the aggravated frame, serious harm to the public interest or to a third party.

Defence strategy

Whether the information is reserved. The offence requires the information not to be divulgeable. Information which is publicly accessible, which is subject to the duty of transparency or which had already been disclosed by the administration itself does not satisfy that requirement.

Absence of serious harm. The aggravated frame requires serious harm to the public interest or to a third party. Where no harm is identified, or where it is speculative, the basic frame of a fine applies and the custodial penalty is excluded.

Reporting of unlawful conduct. The disclosure of information in order to report an unlawful act may be covered by the legitimate exercise of a right under Article 20.7, and by the framework on the protection of persons who report breaches. Documenting the internal channels used first is essential.

Attribution of the leak. Where the information circulated among several officials, the attribution of the disclosure to a determinate person requires technical evidence. The access logs and the distribution of the document are the material upon which that attribution is contested.

• Article 197 CP: disclosure of secrets and privacy
• Article 432 CP: misappropriation of public funds
• Corruption offences in Spain
• Disclosure of secrets and privacy offences

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.