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 (Código Penal) 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.
What conduct the offence of discovery and disclosure of secrets covers
The offences of discovery and disclosure of secrets 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
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
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?
As a general rule, these offences can only be prosecuted following a complaint by the injured party or their legal representative (article 201 of the Criminal Code). 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.
Criminal defence in discovery and disclosure of secrets cases
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 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 of criminal lawyers will provide a rigorous, strategic and fully personalised defence. Contact our firm and we will review your case in complete confidence.
