Disclosure of Secrets
The Offence of Disclosure of Secrets
Lawyer's disclosure of secrets
The offense of discovery and disclosure of secrets punishes those who «to discover the secrets or violate the privacy of another, without their consent, take possession of their papers, letters, email messages or any other documents or personal effects, intercept their telecommunications or use technical devices for listening, transmission, recording or reproduction of sound or image, or any other communication signal.»
Therefore, anyone who violates another person’s privacy by any of the above means will commit the crime of discovering and disclosing secrets.
Contrary to what one might think, disclosing the secrets or information interfered with is unnecessary, but this offense is committed simply by accessing them without consent.
Before explaining the characteristics of this offense, we should analyze what case law understands by «secret» and «violation of privacy.»
What does case law understand by "secret"?
A secret is anything that a person does not disclose or share publicly and voluntarily, i.e., it is personal and private in nature. It is reserved for the knowledge of only a small number of people.
Discovering a secret means accessing it illegally, whether or not it is subsequently disclosed.
What does case law mean by "breach of privacy"?
Privacy infringement means gaining unauthorized access to someone else’s sphere, e.g., opening someone else’s letters or illegally listening in on a telephone conversation. To commit this offense, it is not necessary to discover any secrets during the breach.
The offence of discovery and disclosure of secrets in the Penal Code
As Lawyers specializing in crimes of discovery and disclosure of secrets, we have a profound knowledge of the law.
The crime of discovery and disclosure of secrets is regulated in Title X, Crimes against Privacy, Chapter I, articles 197 to 201 of the Criminal Code:
- Article 197 CP. Discovery and disclosure of secrets by a private individual or legal person.
- Article 198 CP. Discovery and disclosure of secrets by authorities or public officials.
- Article 199 CP. A disloyal or professional employee reveals and discloses other people’s secrets.
- Article 200 CP. Discovery, disclosure, or transfer of confidential data of legal persons.
- Article 201 CP. Requirement of prosecutability in the offenses of discovery and disclosure of secrets and effects of pardon.
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Offense of discovery and disclosure of secrets by a private individual or legal person (art. 197 PC)
The classic conduct of this type of offense consists of discovering another person’s secrets or violating their privacy without their consent, taking possession of personal data, documents, letters, emails, or confidential information. As well as the interception, without consent, of the victim’s communication, regardless of the form, nature, and means used.
It is an activity offense since it is unnecessary to commit it; simply, the intention to execute the action is punishable under the Criminal Code.
The assets protected by this offense are documentary privacy, personal privacy, and secrets themselves.
Penalties for Discovery of Secrets (art. 197.1 and 197.2)
The primary type is punished with a prison sentence of one to four years and a fine of twelve to twenty-four months.
Penalties for the Disclosure of Secrets (art. 197.3)
The disclosure or dissemination of secrets discovered or images captured by a private individual without the owner’s consent is punishable with imprisonment of two to five years.
Suppose the private individual disseminates the secrets or images, knowing their illicit origin, but has not taken part in their discovery. In that case, he/she will be punished with a prison sentence of one to three years and a fine of twelve to twenty-four months.
In addition to the penalties for these offenses, some aggravating factors can increase the punishment:
– Sentence of three to five years imprisonment:
- When the offense is committed by persons responsible for the victim’s documents, files, and computer or telematic supports.
- When it occurs through the use, without consent, of the victim’s data.
In addition, if the data has been disclosed or divulged to third parties, this penalty shall be imposed in its upper half.
– Penalties in the upper half
- If the data reveals the victim’s ideology, religion, beliefs, health, racial origin, or sex life, or if it relates to a minor or disabled person.
- Suppose the information is used for lucrative purposes. If some data in the previous point are used for lucrative purposes, the penalty shall be increased from four to seven years’ imprisonment.
- If the offense has been committed by the spouse or persons who are or have been linked to the victim by a relationship of affection.
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Classical conduct for unlawful disclosure of secrets
Interception of data (Art. 197a)
Due to technological advances, one of the most commonly used conducts nowadays consists of intercepting the victim’s non-public communications or transmissions, thus gaining access to his or her data or using technical devices for listening, recording, or reproduction. It is punishable by a sentence of three months to two years or a fine of three to twelve months.
Data interception can also be carried out by accessing, without the victim’s consent, by providing access to the victim’s computer system to another person or by remaining on the victim’s computer system against the person’s will, violating computer security measures. The penalty for this conduct is six months to two years imprisonment.
Computer-related violence (art. 197 ter)
The Penal Code punishes with a prison sentence of six months to two years or a fine of three to eighteen months those who, without authorization, produce, acquire, import, or provide to third parties a computer program intended for the disclosure of secrets or a password or Code that allows access to the victim’s computer data.
Offense of non-consensual disclosure of images or audiovisual recordings obtained with consent (art. 197.7 CP).
The offense of non-consensual disclosure of images or audiovisual recordings obtained with the consent of the person concerned was introduced in 2015 by Organic Law 1/2015 and subsequently modified by Organic Law 10/22, of 6 September, on the comprehensive guarantee of sexual freedom, better known as » ley del si solo es si.»
The main difference to the conduct typified in article 197.1 is that the images or audiovisual recordings are obtained in a home or any other place out of the reach of the gaze of third parties, with the victim’s consent. However, the victim grants it for private use, not dissemination, as happens later.
As the Supreme Court has indicated, disseminating the images does not necessarily require many persons; a transfer or disclosure to several or even just one person would be sufficient to meet this requirement.
It is punishable by a prison sentence of three months to one year or a fine of six to twelve months.
If you want to know more about this offense, you can read our article on Sexting.
Offense of disclosure of secrets by a public official (art. 198 CP)
Suppose an authority or public official commits any of the conducts foreseen in Article 197. In that case, he/she will be punished with the penalties foreseen in its upper half and, in addition, with absolute disqualification for six to twelve years, as indicated in Article 198 of the penal Code.
The Supreme Court, in its ruling 244/2020, indicated that for article 198 of the Criminal Code to be applicable, the subject must be an authority or public official and, in addition, must act in the area of their specific functions; if this is not the case, their actions will fall within the scope of article 197.
Disclosure of secrets by disloyal employee (art. 199.1 CP)
This conduct, typified in article 199.1 of the penal Code, refers to those who work in private companies with information from third parties and consists of revealing the secrets of others, known by the latter, due to work-related reasons. It carries penalties of one to three years and a fine of six to twelve months.
In this case, it doesn’t need to be the person who explicitly keeps the data file, as the offense includes all persons who, because they work in the company, have the possibility and facility to get hold of the data.
The foreign secret is more than a piece of information relating to the victim’s life, profession, or family; it is a circumstance filed in a specific place (notary’s office, doctor’s office, bank, etc.) such as an inheritance, an illness, a disciplinary file, a criminal investigation, a bank movement, etc.
Offense of disclosure of professional secrets (art. 199.2 CP)
Article 199.2 punishes with a prison sentence of one to four years, a fine of twelve to twenty-four months, and special disqualification from the profession for a period of two to six years, any professional who, in breach of the duty of confidentiality between professionals and client, discloses the secrets of others.
The professional may be of any branch and specialization, whether or not they are regulated in corporations or official associations: lawyers, solicitors, doctors, health professionals, banking professionals, et
Offense of disclosure of company secrets (art. 200 of the Criminal Code)
Artículo 200 del código penal
Lo dispuesto en este capítulo será aplicable al que descubriere, revelare o cediere datos reservados de personas jurídicas, sin el consentimiento de sus representantes, salvo lo dispuesto en otros preceptos de este Código.
In several judgments, the courts have indicated that the reference in the provision to «confidential data of legal persons» should not be interpreted as corporate or business data in the strict sense since this information is protected within the scope of market-related offenses, but should be construed as the confidential data of legal persons, with implications for the privacy of natural persons (partners, directors or employees of the legal person). For example, the disclosure of a list of members of an entity with connotations and objectives closely linked to the privacy of its members.