Article 197 Spanish Criminal Code: Disclosure of secrets and offences against privacy

Article 197 punishes the appropriation of documents, the interception of telecommunications and the use of recording devices in order to discover the secrets or to violate the privacy of another, the unauthorised handling of reserved personal data, and the dissemination of intimate images obtained with consent.

Also cited as: article 197 Spanish Criminal Code · art. 197 CP · Spanish Penal Code article 197 · artículo 197 del Código Penal.

Wording of Article 197 of the Spanish Criminal Code

1. Whoever, in order to discover the secrets or to violate the privacy of another, without the consent of that person, appropriates papers, letters, electronic mail messages or any other documents or personal effects, intercepts telecommunications or uses technical devices for listening to, transmitting, recording or reproducing sound or images, or any other communication signal, shall be punished with imprisonment of one to four years and a fine of twelve to twenty four months.

2. The same penalties shall be imposed on whoever, without being authorised, appropriates, uses or modifies, to the detriment of a third party, reserved personal or family data of another which are recorded in computer, electronic or telematic files or media, or in any other kind of public or private archive or register. The same penalties shall be imposed on whoever, without being authorised, accesses such data by any means, and on whoever alters or uses them to the detriment of the data subject or of a third party.

3. Imprisonment of two to five years shall be imposed where the data or facts discovered, or the images captured, referred to in the preceding paragraphs are disseminated, revealed or transferred to third parties.

Whoever, being aware of their unlawful origin and without having taken part in their discovery, carries out the conduct described in the preceding subparagraph shall be punished with imprisonment of one to three years and a fine of twelve to twenty four months.

4. The acts described in paragraphs 1 and 2 of this article shall be punished with imprisonment of three to five years where:

a) they are committed by the persons in charge of or responsible for the files, computer, electronic or telematic media, archives or registers; or

b) they are carried out through the unauthorised use of personal data of the victim.

Where the reserved data have been disseminated, transferred or revealed to third parties, the penalties shall be imposed in their upper half.

5. Likewise, where the acts described in the preceding paragraphs affect personal data revealing ideology, religion, beliefs, health, racial origin or sexual life, or where the victim is a minor or a person with a disability in need of special protection, the penalties provided for shall be imposed in their upper half.

6. Where the acts are carried out for the purposes of profit, the penalties respectively laid down in paragraphs 1 to 4 of this article shall be imposed in their upper half. Where they additionally affect data of those mentioned in the preceding paragraph, the penalty to be imposed shall be imprisonment of four to seven years.

7. Whoever, without the authorisation of the person concerned, disseminates, reveals or transfers to third parties images or audiovisual recordings of that person which the offender obtained with the consent of that person in a dwelling or in any other place beyond the sight of third parties, shall be punished with imprisonment of three months to one year or a fine of six to twelve months, where the disclosure seriously impairs the personal privacy of that person.

A fine of one to three months shall be imposed on whoever, having received the images or audiovisual recordings referred to in the preceding subparagraph, disseminates, reveals or transfers them to third parties without the consent of the person concerned.

In the cases of the preceding subparagraphs, the penalty shall be imposed in its upper half where the acts have been committed by the spouse or by a person who is or has been bound to the victim by an analogous relationship of affection, even without cohabitation, where the victim is a minor or a person with a disability in need of special protection, or where the acts have been committed for the purposes of profit.

Working translation prepared by Société Juridique from the consolidated Spanish text published by the Official State Gazette. It has no official status: the only authoritative version is the Spanish original, available at the Official State Gazette and reproduced verbatim in our Spanish-language entry for this provision. Source: Organic Law 10/1995 of 23 November, the Spanish Criminal Code.

Sentencing range. Imprisonment of one to four years and a fine of twelve to twenty four months for the basic forms, two to five years where the data or images are disseminated, three to five years in the cases of paragraph 4 and four to seven years where a purpose of profit concurs with sensitive data. The dissemination of consensually obtained intimate images under paragraph 7 carries three months to one year or a fine.

Elements of the offence

  1. In paragraph 1, the appropriation of documents or personal effects, the interception of telecommunications, or the use of technical devices for listening, transmission, recording or reproduction.
  2. A subjective element in paragraph 1, namely the purpose of discovering the secrets or of violating the privacy of another.
  3. In paragraph 2, the appropriation, use, modification of or unauthorised access to reserved personal or family data held in files or registers, to the detriment of a third party.
  4. The absence of consent of the person concerned, which is the dividing line in the modality of paragraph 7, where the material was originally obtained with consent.

Defence strategy

Absence of the subjective element. Paragraph 1 requires the purpose of discovering secrets or of violating privacy. The recording of a conversation in which the person recording takes part, or the retention of documents for evidential purposes in pending proceedings, lacks that purpose and has repeatedly been held to fall outside the offence.

Consent and its scope. Consent may be express or inferred from the conduct of the parties, and it may cover the obtaining of the material without extending to its dissemination. Paragraph 7 rests precisely upon that distinction, and the messages exchanged between the parties are habitually decisive on the point.

Reserved character of the data. Paragraph 2 protects reserved data. Information which is publicly accessible, or which the person concerned has disclosed, does not satisfy that requirement, and the burden of establishing the reserved character lies with the prosecution.

Lawfulness of the evidence obtained. Where the incriminating material comes from the examination of a device, its validity depends on the judicial authorisation and on the chain of custody laid down in Articles 588 bis a and following of the Criminal Procedure Act. A defect at that stage renders the evidence unusable.

Seriousness of the impairment of privacy. The modality of paragraph 7 requires that the disclosure seriously impair the personal privacy of the victim. The extent of the dissemination, the identifiability of the person and the effect actually established are the factors on which that threshold is contested.

Defence in this area

If you or your company are facing proceedings in this area, the firm provides defence and prosecution in Alicante and Madrid, with 24-hour assistance to detained persons.

Are you under investigation or facing charges in Spain? Société Juridique acts for foreign nationals throughout Spain, with offices in Alicante and Madrid and a 24-hour custody line. +34 669 30 21 13 or enquire online.

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.

Frequently asked questions

What penalty does Article 197 of the Spanish Criminal Code provide for disclosure of secrets and offences against privacy?

Imprisonment of one to four years and a fine of twelve to twenty four months for the basic forms, two to five years where the data or images are disseminated, three to five years in the cases of paragraph 4 and four to seven years where a purpose of profit concurs with sensitive data. The dissemination of consensually obtained intimate images under paragraph 7 carries three months to one year or a fine.

What are the elements of the offence under Article 197 of the Spanish Criminal Code?

In paragraph 1, the appropriation of documents or personal effects, the interception of telecommunications, or the use of technical devices for listening, transmission, recording or reproduction. A subjective element in paragraph 1, namely the purpose of discovering the secrets or of violating the privacy of another. In paragraph 2, the appropriation, use, modification of or unauthorised access to reserved personal or family data held in files or registers, to the detriment of a third party. The absence of consent of the person concerned, which is the dividing line in the modality of paragraph 7, where the material was originally obtained with consent.

What defence strategy applies to a charge under Article 197 of the Spanish Criminal Code?

Absence of the subjective element. Paragraph 1 requires the purpose of discovering secrets or of violating privacy. The recording of a conversation in which the person recording takes part, or the retention of documents for evidential purposes in pending proceedings, lacks that purpose and has repeatedly been held to fall outside the offence. Consent and its scope. Consent may be express or inferred from the conduct of the parties, and it may cover the obtaining of the material without extending to its dissemination. Paragraph 7 rests precisely upon that distinction, and the messages exchanged between the parties are habitually decisive on the point. Reserved character of the data. Paragraph 2 protects reserved data.

Is the English text of Article 197 of the Spanish Criminal Code official?

Working translation prepared by Société Juridique from the consolidated Spanish text published by the Official State Gazette. It has no official status: the only authoritative version is the Spanish original, available at the Official State Gazette and reproduced verbatim in our Spanish-language entry for this provision. Source: Organic Law 10/1995 of 23 November, the Spanish Criminal Code.

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