Privacy Advisor

SPAIN—The dissemination of private videos without the consent of the person involved may be punished with a prison sentence.

November 1, 2012

Manas_Pinar_Jose_LuisBy José-Luis Piñar

The Spanish government recently resolved, on 11 October, to submit to Congress a bill on the reform of the Criminal Code which, among other things, includes the possibility of sentencing to prison people who disseminate private videos without the consent of the persons involved, even if they were recorded with the victim’s consent and that person made them available to somebody else. The Criminal Code in force only punishes the seizure or interception of private messages of the victim, but it does not establish what should happen if that person provides them to a person who later disseminates them.

A few weeks ago, a private video with erotic contents affecting an alderwoman from a town council in the province of Toledo was disseminated. The dissemination of the video led to a stream of comments in the media. The video was disseminated without the protagonist’s consent.

Without prejudice to the infringement of the Spanish Data Protection Act of 1999, the government wishes to prevent similar situations from being repeated and it has therefore passed a bill that establishes a punishment of three months to a year in prison for those who “without the authorisation of the person involved disseminate, disclose or grant to third parties images or audio-visual recordings of that person,” provided that said dissemination “seriously tarnishes that person’s privacy.”

The requirements for an act to be considered as incurring in such an offence are that the recordings were obtained with the victim’s consent, that is, consenting to the recording but not to the dissemination of that recording, and that the recording took place “at a home or any other place beyond the view of third parties.” In this respect, the issue arises of what is to be understood as a place beyond the view of others. The government has stated that it should be understood that the recording was made “with the intention of protecting it”; therefore, there would be no offence if the recording took place in public venues or at private parties if several persons were present.

This new offence that is typified would also protect those who accept the recording of private videos but do not consent to the dissemination thereof in the social media, something which increasingly occurs among young people and teenagers. What is not accurately defined is whether this new offence is also deemed to have been committed not only by the person who first disseminates the images but also by those who, having received them, in turn transfer them to others. It seems like the government wishes to protect the victim’s privacy in all cases.

The bill must now be discussed in Parliament so that, as the case may be, it may become an Act of Parliament. This does not seem difficult because the government party enjoys an absolute majority in both Congress and the Senate. In any event, the typification of the offence must be better defined for the avoidance of interpretation issues.

This bill is intended to further protect the right of privacy of individuals, this time even through criminal action.

Jose-Luis Piñar Mañas, Ph.D., is an attorney at Piñar Mañas & Asociados Law Firm and a professor of administrative law in CEU-San Pablo University, Madrid. He directs an international research project on data protection, transparency, security and the market. He also is the former director of the Spanish Agency for Data Protection and former vice-chairman of the Article 29 Working Party and the first president of the Ibero-American Network of Data Protection. He can be reached at jlpinar@pmasociados.com.