An intimate photo is published, without permission from its protagonist, on social networks.Or a private image runs through instant messaging channels.What can the victim do?
If what is intended is to eliminate the recommended option as soon as possible, when it has been hung on social networks, it is to go to the Spanish Data Protection Agency (AEPD).This entity has just created in its portal a priority channel to block with the maximum possible rush the dissemination of this type of images, videos or audios that circulate without the permission of those affected.
However, if you also aspire to obtain compensation for that attack on privacy or a punishment is sought by criminal means for those who have perpetrated it, the advisable and more effective would also be to submit a police or judicial complaint.
Going to data protection is the fastest path to block or erase content
And can the two ways start in parallel?No one prohibits it.But be careful!If at the same time denounced in data protection and in police or judicial headquarters it could be the case that the AEDP did not have it so easy for the immediate blockade of these images, since the judicial case initiated by the matter prevails over the administrative measure, and the latter could be paralyzed waiting for the judges' response.
So the advisable, when what is sought is the immediate deletion of a photo or video hanging on the network that threaten privacy, is first denouncing in that channel of the Spanish Agency for Data Protection specifically created to block those contents.And once the deletion has been achieved, start the police or criminal route.
Another thing that the victims of these cases must always be in mind is that the criminal punishment to those who disseminate intimate and private images of third parties without their permission has already been protected by a recent judgment of the Supreme Court that has sat jurisprudence.
And another fact that also plays in favor of the victims: the option of the rapid erase of these images is also today more effective than ever, after the Spanish data protection agency has opened that specific mailbox (priority channel) to attend andstudy this type of demand.
To achieve compensation and punish those who disseminate the images, police or judicial complaint must be submitted
They are two ways with different speeds.The AEPD priority channel is the fastest to abort the propagation in the social networks of content that threatens intimacy, while by the judicial path things advance more slowly and in that way you do not always achieve an immediate video eliminationor photos.
Another of the most widespread doubts among the victims of these cases - especially when they consented to the capture of these images and they themselves facilitated that content to someone from their most intimate environment - is whether that can play against them when filed by submitting a complaint.
Criminal via is now more effective after the Supreme Court will sit
Now the courts have resolved it.The Supreme Court Judgment (the rapporteur has been the magistrate Manuel Marchena) leaves things clear as a neck.“Whoever sends a person entrusting an expressive photo of his own intimacy is not renouncing this in advance.Nor is he irremediably sacrificing his privacy.His gesture of confident delivery and selective exposure to a person whose loyalty does not question does not deserve the punishment of exposure to collective fake ”, says the judicial ruling.
The resolution of the high court condemns a penalty of a fine of 1.080 euros to a man who sent a photo of a naked friend from his phone (she had spent time ago) to the current sentimental partner.
If you opt for the AEDP pathway, you have to know...
A person harmed by the dissemination of a photograph or video that he considers that he is an attack on his intimacy has two paths if, before going to the Court or the Police, he decides to put the facts to the knowledge of the Spanish Agency for Data Protection.
“On the one hand - an agency spokeswoman may request - you can request urgent withdrawal through the priority channel of sexual or violent content (images, videos, audios) to minimize damage when they are spreading in forums, web pages or networks or networks social".
If you want to go further, you can also ask the AEDP "to value the opening of a sanctioning procedure against him or the users responsible for having performed the illegitimate treatment of those private data," adds the same spokesman.But the injured person has to know that this second route (that of the administrative fine) will not be so immediate, it will take longer to resolve.
The AEPD can impose severe fines, but that process can be delayed over time
The same spokesman reports, regarding the first step mentioned, that the effectiveness of the priority channel is very high."We are obtaining a very positive response from the service providers to the requests for content withdrawal of content that threaten the privacy of people".
From that mailbox for the erase, about twenty withdrawal orders have already been processed, the agency spokeswoman revealed, “and in all cases the platforms on which this material was published eliminated the content in less than seventy -two hours.And some did not take ten minutes ".
It is the proof that if what is sought is to abort as soon as possible the dissemination of photos or videos the way to follow more effective is the AEDP.
What if I go to court, what can I expect?
With regard to the judicial process of these cases against intimacy, it will always be slower or farm.Although now, after the Supreme Judgment, everything indicates that it will be easier.The great leap in this area, recalls José Leandro Núñez García, partner of the Audens Office and a lawyer specialized in data protection, intellectual property and advertising law, was given in 2015 with the modification of the Criminal Code to introduce a new criminal type.
The great leap to pursue these crimes occurred in 2015, with the reform of the Criminal Code
It was then introduced "an article - this lawyer has worked at the AEPD - designed to chase those who reveal without authorization videos or intimate images that, although they have been captured with authorization from the other person, are not designed to be disseminated".
And it continues: "The idea is simple: it is one thing to allow me to take a photo or a video, and a very different one is to authorize that it is disseminated".Before that reform in the Criminal Code, "the distinction was not so clear, which was checked with cases such as the councilor forgotten Hormigos (very intimate images of this woman were disseminated) that in a way inspired this new crime".
Any private image spread without the permission of the protagonist is likely to be denounced?"The Criminal Code establishes that the crime occurs when scenes captured at an address or anywhere else outside the reach of third -party gaze and when the dissemination seriously undermines the personal intimacy of that person," adds Núñez.
"The idea is simple: it is one thing to allow you to take a photo or a video, and a very different one is to authorize that it is disseminated"
José Leandro Núñez Garcíaabogado Expert in Data Protection
So "the greater the impact on intimacy, and the more private the place in which the images have been captured, the more options there will be a criminal complaint about a case of these characteristics," says this lawyer.
In the event that these images escape very intimate acts, such as sexual behaviors or scenes with a great erotic burden (they are the most reported cases in criminal via) it would be advisable to go to the Spanish Agency for Data Protection.Using that route is noted at the most effective moments when it comes to images captured, for example, in public spaces, beaches, swimming pools...
"From the data protection perspective, this component of serious impairment of the privacy required in the criminal type has less relevance," emphasizes José Leandro Núñez.And the AEDP is very clear that “any unauthorized dissemination of the image of a person (although it is not a very intimate scene) is susceptible to infraction, although the consequences for the offender will always be much less serious than those derived from a criminal case”, Add this lawyer.
For photos or videos outside the most intimate or sexual sphere it is advisable to report on the AEDP
This lawyer considers, on the other hand, that the priority channel of the AEDP “is the most effective way to eliminate content of this type of Internet because it reacts, in clearly illicit cases, much faster than the courts.That said, going to this priority channel does not prevent the criminal process from getting more overwhelming. ”.
The AEPD can also open sanctioning procedures if in addition to requesting the elimination of a published material, the dissemination of these images in the same agency is denounced.Resolution deadlines, in these cases, are no longer so fast.The last example, a complaint filed in July last year and that the AEPD has just resolved now.It imposes a fine of ten thousand euros to a man for spread.
AEDP has just fined with 10.000 euros to a man for spreading intimate photos of a friend
What does the Criminal Code say?
The crimes of discovery and revelation of secrets are collected in Chapter I of Title X “Crimes against privacy, the right to one's image and the inviolability of the address” (Articles 197 to 201 of the Criminal Code).Article 197.7 is the one that addresses the issue of intimate photos or videos.And establishes a prison sentence of three months to a year or fine of six to twelve months for those who disseminto propagate someone from their surroundings.The person who receives them cannot forward them without the permission of the protagonist of that scene.
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