This week it has been news that "a judge from Lugo does not see a crime to record some women urinating and to upload the images to a pornographic website because it was on public roads," which has created a great controversy in social media and media.Actually, this is not the first news on the subject, because the same judge already spoke about this case in March this year, when he agreed his file.The complainants appealed the decision and now the judge dismisses said appeal.
As the archive has been issued against the opinion of the Prosecutor's Office and the central point of the controversy is whether there can be a crime against intimacy on public roads, it may be appropriate to clarify this point and make some other related consideration.
Crimes against intimacy
The first thing to say is that the crimes against (the right a) the intimacy and the right to the image itself regulate together in the title X of the Criminal Code, because often they are related and refer to the collection and dissemination,As in this case, of 'intimate images'.But this does not always happen and other types of images - not intimate - in crimes against honor can also be spread.
Article 197, section 1, regulates the basic type of the crime of discovery of secrets: “He who, to discover the secrets or violate the intimacy of another, without their consent ... Use technical artifice of recording or reproduction of sound or image, will be punished with prison sentences from one to four years ”.And it seems, in principle, that it would be what happened in the case of reference.
And in section 3 the basic type of the crime of revelation of secrets is regulated: "The prison sentence of two to five years will be imposed if the images captured are disseminated or yielded to third parties" for which he captured them without consent;and imprisonment of one to three years for which, with knowledge of their illicit origin, disseminates the images without having taken part in their discovery or capture.
So, regardless of whether the images upload them to a porn website who captured them or other people who did not participate in their collection, two crimes would have occurred: one first of discovery of secrets and another second of revelationof secrets.But the key to the problem is that there is no revelation of secrets if there is no discovery of secrets.
That is why the discussion about whether there can be secrets or intimacy on public roads, if the answer is not (the one that the judge gives), then the Criminal Code could not be applied, because some could not be discovered someSecrets or violating a non -existent intimacy, because secrets and intimacy would be publicly exposed.Another thing is that he has a lawsuit by civil via.
@umarfarrukh tile
— Haani Fri Oct 21 23:48:55 +0000 2011
‘Privacy expectations’
The position of the Prosecutor's Office, which opposed the archive of the case, was contrary to that of the judge: "The fundamental right to personal intimacy is not a right that is exerted exclusively in private or closed areas, but a right of broad contentthat the person carries with him at all times, he is where he is ".And I basically agree with this position, although with some qualification, because it does not give the same where the person is.
The response is found in the same article 197, section 7, explaining what images should be considered 'intimate': "Images or audiovisual recordings of a person obtained at a home or anywhere else outside the reach of the look of the gaze of third parties".That is what the girls wanted to do in this case, to be out of the reach of third parties.
However, section 7 cannot be applied complete, because it is planned for when the images have been captured with consent, but they are disseminated without consent.And in this case both things were done without consent.But it can serve, I think, for a systematic interpretation of what is understood as ‘intimacy’ or, as jurisprudence says, for ‘privacy expectations’.
Crime against moral integrity
Another crime that could have been committed is the crime against moral integrity, of article 173.1 CP: "The one who inflicted another person a degrading treatment, severely undermining their moral integrity, will be punished with the prison sentence from six months to two years".But the judge considers that "the mood (intention) is not appreciated to break the physical and moral resistance" of the victims.
And it is that the crime against moral integrity has recently become a tailor's drawer in which it tries to frame behaviors that have a difficult lace;especially, crimes against the right to honor, intimacy and image itself.But let's not forget that the crime against moral integrity is regulated along with the crime of harassment: repeated hostile and humiliating acts, without reaching degrading treatment.
That is, the intentional element of the crime against moral integrity, as in the crime against physical integrity, is damaging (impair) to the victim;When in this case it does not seem to be the main intention of those who captured and uploaded the images to porn websites, some payment;but rather a sexual or economic intention.Although the damage caused is taken into account.
Not everything illegal is a crime
The outrage that this news has generated is because many people confuse the illicit (or illegal) with the criminal (criminal illicit) and believes that if something is not considered a crime, then it is legal and is left without punishment.And no.The Criminal Code is the last resort of the order, which must be reserved for the most serious behaviors.Apart there are civil illicit that are compensable.That is what the judge said.
The decision has been appealed to the Lugo Provincial Court, but, beyond what it finally decides on whether there can be intimacy on public roads and if, therefore, there is a crime against privacy, it is clear that, byThe least, there is an illegitimate interference (civil) in the right to honor and to the image itself, because no one can capture images of another on the street, without its consent.
It is a very widespread confusion to think that, if one is on the street, you can photograph or record without asking permission, but that is an exception referred to famous characters.The general rule is that "it will be considered illegitimate interference: the collection, reproduction or publication of the image of a person in places or moments of their private life or outside them".