Exactly what constitutes privacy?

An erotic video filmed by Olvido Hormigos, a local politician from Toledo, and posted on the internet without her permission, where it was seen by thousands of people, was not stolen. The outcome of an investigation by a court in Orgaz, Toledo, notes Hormigos sent the footage of herself to her 27-year-old lover, Carlos S¨¢nchez, who then made the clip public last summer. As a result, the court will not be bringing charges against him, or the mayor of Y¨¦benes, who was accused of resending the video, for breaching her right to privacy.

In reaching its conclusions, the court did not deny that Hormigos¡¯ privacy was violated, but instead pointed out that as the video was not stolen, there was no charge to answer.

The Hormigos case has highlighted the complex legal problems relating to our widespread and fast-growing use of new technology, particularly in the cases of individuals and couples, sometimes under-age, who film themselves having sex, or swap photos and videos of themselves in the nude or in other compromising situations when drunk or on drugs. All too often, the material falls into the wrong hands, and is then distributed on Facebook, Twitter, or via the WhatsApp messaging app, with the aim of embarrassing or harassing the victim.

Online harassment is a growing problem: one in five Spaniards say they have been a victim, according to the only survey on the subject, carried out by the Criminal Center for the Study and Prevention of Delinquency at the Miguel Hern¨¢ndez University in Elche, Alicante. The survey shows that posting other people¡¯s private information ¡ª not necessarily of a sexual nature ¡ª on the internet without their consent is the most common practice. One in 10 people said this had happened to them, or that they had been stalked, while around three percent reported having been threatened or insulted online.

So is the law doing enough to protect us? In the case of Olvido Hormigos, the courts have ruled that no offense took place. Article 197 of the Penal Code deals with the crime of revealing personal information about an individual without their consent, which is what Hormigos had accused her lover and her political opponent of. But the law establishes that such information must be illegally obtained, and sets sentences of between one and four years for doing so, but requires ¡°interception of telecommunications or the use of listening, transmission or sound and image recording equipment.¡± In Hormigos¡¯ case, she was the one who passed on the intimate video of herself to her lover.

On March 15, the court ruled there was no case to answer. It pointed out that Hormigos told an investigating magistrate that ¡°in the context of her personal relationship with the accused, she voluntarily made the video in question in the privacy of her home, using for this means her cellphone, and subsequently sending it to the accused, reminding him of this on several occasions.¡± Her lover corroborates this version of events.

The judge¡¯s decision is correct, says Manuel Cancio, a professor of criminal law at the Madrid Aut¨®noma University. ¡°Unlike other countries, Spain has decided not to make it a crime to reveal other people¡¯s personal secrets. By punishing the legitimate access to information of an intimate nature it is understood conversely that it is not a criminal act to share them with others if they have been obtained legitimately,¡± he adds. Cancio says that in Germany distributing private material, even if obtained legally, is defined as ¡°a breach of confidentiality,¡± although applying the law has proved problematic.

The Spanish government has now decided to follow the German example. On October 11, a month after the Hormigos case hit the headlines, it announced the inclusion of the new measures in the Criminal Code. It will now be illegal to publish or distribute any image that breaches the ¡°intimacy of that person¡± without the consent of the person concerned, even if it has been obtained with their permission. But the punishment, between three and 12 months in jail, means those without prior convictions are unlikely to spend time behind bars for divulging intimate information.

One in five say they have been a victim of online harassment

Cancio further outlines the likely obstacles the new law will face. ¡°In the first place, it will have to be proved that the person who distributed the images knew the victim did not want them made public,¡± he says. ¡°What¡¯s more, who establishes what constitutes betraying trust? Does a photo of someone in their bathing suit on the beach count? The person who has committed the crime must also know they have committed this breach of privacy, but the problem is that not everybody understands the law in the same way.¡±

Ferm¨ªn Morales, a criminal law professor at Barcelona Aut¨®noma University, says the legal concept of breach of privacy is far from clearly established. ¡°What might be breach of privacy for one judge might not be considered so by another, so how do we establish the limits?¡± Morales says the current law is sufficient: ¡°There is a clear incrimination: the information must have been obtained illicitly.¡±

Both Morales and Cancio argue that the new law could also limit our right to freedom of information. ¡°Imagine that a journalist publishes a document obtained by a third person because he or she believes that it contains relevant information. If that third person then alleges the information has been published without their permission, could the journalist be accused of having committed a crime?¡± asks Morales.

But Jos¨¦ Ram¨®n Agustina, a criminal law lecturer at the International University of Catalonia, believes the new legislation is justified: ¡°New technologies make it easier and quicker to distribute information that includes intimate details, regardless of how it was obtained.¡± The internet and social networks ¡°have generated a cultural change in the way we share information,¡± he adds. ¡°We have failed to think this through: we now have a culture of plastering images everywhere, and this means losing our sense of privacy, and weakens our awareness of what it means to consent to sharing such information.¡±

The judge who oversaw the Hormigos case has left the door open to possible punishment via Article 173.2 of the Criminal Code, which outlines ¡°crimes against the moral integrity¡± of the individual. But this could only be applied against Hormigos¡¯ former lover, on the grounds that they supposedly enjoyed ¡°a relationship, even though they did not live together.¡± The crime that can be punished, psychological violence, which carries a sentence of between six months and three years in prison, is a difficult one to prove, however. Hormigos¡¯ lawyer would have to show that posting the video on the internet, or sending it to third parties via WhatsApp, was done with the specific intention of causing her psychological harm.

¡°The law can be applied as needed, for example, in the case of domestic abuse. A law covering moral integrity would be applied in cases related to the revealing of secrets,¡± says Cancio, pointing out that Article 8.1 of the Criminal Code says that if there has not been a breach of trust, there cannot have been a crime against somebody¡¯s moral integrity.

Morales adds that cases such as Hormigos¡¯ are not considered crimes under the current law, but can be pursued in civil courts through the law covering the protection of the defense of an individual¡¯s honor, privacy, and their public image. Article 7 of the Civil Code relates to ¡°the capturing, reproduction, or publication by photograph, film, or any other procedure, of the image of a person in private places or moments.¡±

Olivido Hormigos will not see the man who betrayed her trust behind bars or fined, but she will, through a civil action, likely win considerable compensation.