Discovery and disclosure of secrets
Criminal lawyers in Barcelona specialising in offences against privacy: unlawful access to data, communications or devices and disclosure of private information
The offences of discovery and disclosure of secrets aim to protect privacy, personal intimacy and the control each person has over their own personal information. This area is especially relevant today, given how easy it is to access, store and share data in the digital environment.
The Spanish Criminal Code regulates these offences in articles 197 to 201. The legal interest protected is the fundamental right to personal and family privacy, together with the secrecy of communications. Unlike other offences —such as property offences or offences against public order—, what is protected here is not a direct economic loss or collective stability, but the most private sphere of the individual: the law ensures that no one can access, use or disclose sensitive information without the person’s consent.
These offences include several types of conduct that share one feature: they infringe a person’s privacy without their consent. The Criminal Code distinguishes between different scenarios depending on how the information is accessed and whether it is subsequently disclosed.
Unlawful access to data, communications or images (art. 197.1 and 197.2)
First, the law punishes unlawful access to personal data or information, whether by seizing documents, intercepting communications or using technical means to capture images or sound.
This conduct does not necessarily require the information to be disclosed afterwards: simply accessing it without authorisation can in itself constitute an offence.
Disclosure or dissemination of the information (art. 197.3)
Second, the Criminal Code punishes the disclosure or dissemination of secrets or confidential data. In these cases the offence is more serious, because not only is the private sphere infringed, but the harm is amplified when the information is made public.
This includes, for example, sharing intimate content with third parties or over the internet.
Aggravated offences and corporate criminal liability
The Code also provides for aggravated offences, for example when the acts are committed by the persons in charge of or responsible for files or databases, or when a public official is involved. In the latter case the criminal response may be more severe, given the official’s position of trust and public office.
The Criminal Code also provides for the criminal liability of legal entities for these offences, so companies or organisations may be held criminally liable when this conduct takes place in the course of their business or with the aim of obtaining any particular benefit.
These scenarios should be distinguished from those affecting a company’s confidential information (commercial data, production processes, customer lists…), which the Criminal Code regulates separately as offences of disclosure of trade secrets (articles 278 to 280).
Finally, these offences may overlap with other criminal offences, especially in the technology sphere, given the exponential growth of data protection and information security in an increasingly digital society.
Penalties for the disclosure of secrets
The penalties for these offences are significant:
- Discovery (accessing the information without consent): one to four years in prison and a fine of twelve to twenty-four months.
- Discovery and disclosure of the information obtained: two to five years in prison.
- Aggravated offences: in certain cases, the sentence can reach seven years in prison.
Does the victim have to file a complaint? (art. 201)
As a general rule, these offences can only be prosecuted following a complaint by the injured party or their legal representative. If the victim is a minor, a person with a disability in need of special protection or a vulnerable person, the Public Prosecutor may also file the complaint.
A complaint is not required when the acts are committed by an authority or public official in the exercise of their duties, or when they affect the general interest or a plurality of people. In addition, a pardon by the injured party extinguishes the criminal action.
Success story:
Journalists cleared in the Dina case
At SMK Lawyers we have acted in high-profile proceedings for discovery and disclosure of secrets.
One of the best known is the Dina case before Spain’s National High Court (Audiencia Nacional): the journalists defended by Sergi Mercé Klein were fully cleared of criminal liability after the injured parties granted their pardon and the charges were withdrawn.
Read the full case (in Spanish): Exonerados los periodistas del caso Dina
How can we help you at SMK?
Offences of discovery and disclosure of secrets are particularly complex, especially in the digital environment, where the line between lawful conduct and a criminal offence can be blurred. Accessing devices, sharing content or handling personal data can lead to situations where the legal classification is not obvious and requires detailed technical analysis.
At SMK Lawyers we offer a strategic, personalised criminal defence at every stage of the proceedings:
- Defence of people under investigation or charged with unauthorised access to emails, messages or devices
- Defence in proceedings for disclosure or dissemination of private information
- Immediate legal assistance at the police station and in court
- Procedural strategy from the investigation phase onwards
SMK lawyers, specialists in disclosure of secrets offences
Sergi Mercé Klein has led SMK Lawyers for more than 25 years and is one of the most experienced criminal lawyers in complex proceedings, including offences of discovery and disclosure of secrets.
We have extensive experience defending individuals and professionals under investigation or charged with this type of offence, and we have acted in highly significant proceedings, some of them with considerable media impact.
This experience allows us to approach each case with a solid strategy, tailored to its specific circumstances and aimed at the best possible defence of our clients’ interests. If you need specialist criminal law advice in Barcelona on offences against privacy, our team will provide a rigorous, strategic and fully personalised defence.
Experiences from those who trusted us
“An excellent experience with this firm. From the very first moment they treated me with professionalism, warmth and impeccable personal care. They explained everything clearly, answered all my questions and defended my interests effectively. I felt supported at every step. I recommend them 100%, with a special mention for Sergi Mercé, head of the firm, who followed the case personally throughout. Thank you so much, team!”
— D.N.
“I have trusted this firm on several occasions, always with excellent results. Their professionalism and dedication are outstanding. I especially want to highlight a very complex criminal case of workplace harassment, which they handled with admirable sensitivity, firmness and effectiveness, achieving the best possible outcome. My eternal gratitude to the whole team, and in particular to Sergi Mercé, for his dedication, closeness and commitment throughout the long process.”
— M.B.
“We came from another firm, desperate after an inadequate defence, and were delighted to find that this firm is a 10 out of 10. Very competent, pleasant, empathetic and on a par with the best. We are very grateful for all the attention and follow-up we received. Thank you, Patricia and Sergi.”
— I.V.
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