The right to privacy and to one’s own image is a fundamental right recognized in Article 18 of the Spanish Constitution, which grants individuals the power to prevent the capture, reproduction, or publication of their image by unauthorized third parties, regardless of the purpose pursued by those who capture or distribute the image.
From a criminal law perspective, we find Article 197 of the Spanish Criminal Code, which in its seventh paragraph punishes anyone who obtains images, with or without the consent of the affected person, and then distributes them without permission, provided that these images or recordings were obtained inside a private residence or in any other place beyond the view of third parties, and their disclosure seriously undermines that person’s privacy.
Likewise, it is important to highlight that this article also punishes anyone who, after receiving such images or audiovisual recordings, distributes, reveals, or shares them with third parties without the consent of the person affected.
Recent case law has addressed the requirement that the images must have been obtained “in a private residence or in any other place beyond the view of third parties.” Courts have clarified that this is not strictly a requirement related to a specific place, but rather that the provision aims to reinforce the exclusive nature of personal privacy.
Therefore, in order to speak of criminal conduct, it is required that the images or audiovisual recordings were obtained in a non-public setting, where a certain degree of privacy exists. This clarification helps define the boundaries between civil and criminal liability, as this type of crime is often rooted in acts of revenge, and the images or recordings that are distributed frequently contain sexual content. For this reason, such conduct is commonly referred to as revenge porn.
However, if the content was captured in a public place and its dissemination does not constitute sexual revenge, the act may still violate the person’s moral integrity and right to their own image. In such cases, the unauthorized dissemination of material showing a person who did not consent to its publication may still constitute harm to that person’s image and reputation, and therefore such conduct may be protected under civil law.
Within the civil legal framework, we find Organic Law 1/1982 on the Protection of Honor, Personal and Family Privacy, and One’s Own Image, which prohibits the capture and dissemination of images of individuals without their consent. This law considers it an unlawful intrusion to capture, reproduce, or publish, by means of photography, film, or any other procedure, the image of a person in places or moments of their private life, or even outside them.
At this point, a relevant question arises: Is blurring a person’s face in a photograph sufficient to anonymize them and make them unrecognizable? Apparently not. The face is not the only sensitive personal data when it comes to image dissemination. Recent case law considers that a person’s voice or even their silhouette can be distinctive characteristics that facilitate identification. Therefore, their dissemination without consent may still violate the right to one’s own image.
" Privacy published on social media is not privacy, it is publicity"
