Has someone accessed your phone without permission? Are you accused of violating another person’s privacy?
Your phone contains more information about you than any other object you own: private conversations, intimate photographs, bank details, locations, search history. Now imagine someone accessing all of that without your permission. Or worse: that they share part of that content. In Spain, crimes against digital privacy have grown by 35% in the last three years according to data from the State Prosecutor’s Office, and courts are applying increasingly severe penalties.
As a criminal defense attorney, I have defended both victims and defendants in these types of cases. What many don’t know is that actions that seem «harmless» — checking your partner’s phone, accessing their Google Drive account, forwarding an intimate photo after a breakup — can result in a conviction of up to 4 years in prison.
What Criminal Law protects in digital privacy matters
Article 18 of the Constitution protects the right to privacy and the secrecy of communications. With smartphones and cloud services, this right extends to:
- WhatsApp, Telegram or Signal messages.
- Photos and videos stored on the phone or in the cloud (iCloud, Google Drive, Dropbox).
- Email and personal files.
- Metadata: location, browsing history, app usage.
The Constitutional Court (STC 173/2011) expressly recognized that digital privacy is part of the core of the fundamental right under Article 18 of the Spanish Constitution. Accessing this data without consent is a crime, regardless of your relationship with the other person.
Article 197 of the Criminal Code: the core of these crimes
Article 197.1 CC: unauthorized access
Punishes anyone who accesses data, files or communications belonging to others without permission in order to discover secrets or violate privacy. The penalty is imprisonment from 1 to 4 years and a fine from 1
Are you being investigated for accessing another person’s phone or accounts?
Penalties for crimes against digital privacy
Penalties vary according to the conduct:
- Unauthorized access (197.1 CC): imprisonment from 1 to 4 years + fine from 12 to 24 months.
- Interception of communications (197.2 CC): same penalty as above.
- Distribution of intimate images (197.7 CC): imprisonment from 3 months to 1 year or fine from 6 to 12 months.
- Aggravating factors: if the data is distributed for profit, if it affects minors, if committed by a public official or if the data is used to harm the victim, penalties increase.
Additionally, Article 197 bis CC punishes unlawful access to computer systems (what technicians call hacking), with imprisonment from 6 months to 2 years. And 197 ter CC sanctions the production or provision of tools to commit these crimes.
Criminal defense: what arguments can be used
In my experience defending digital privacy cases, the most effective defense strategies are:
- Consent: proving that the victim authorized access expressly or implicitly.
- Absence of harmful intent: the defendant did not intend to discover secrets or harm anyone.
- Error regarding ownership: the defendant believed in good faith that they had the right to access the device or account.
- Unlawful evidence: if the evidence against you was obtained by violating your fundamental rights (Article 11 LOPJ), it is excluded from the proceedings.
The defense must request forensic examinations that analyze IPs, access methods, file metadata and the chain of custody of evidence. If the digital evidence is contaminated or was unlawfully obtained, the case may collapse. Understanding how a criminal trial
Has your digital privacy been violated or are you accused of having done so?
Opinion of this criminal defense attorney specialized in cybercrime
In the understanding of the undersigned attorney, crimes against digital privacy are one of the criminal areas with the greatest growth and the greatest lack of awareness among citizens. Many people are not aware that checking someone else’s phone can result in a conviction of up to 4 years in prison. The boundary between curiosity and crime is, in many cases, just one click.
If you find yourself in this situation, whether because someone has accessed your data or because you are being investigated for having done so, time is working against you.
Frequently asked questions about crimes against digital privacy
Is it a crime to check my partner’s phone?
Yes, if you do it without their consent. Article 197.1 CC punishes unauthorized access to others’ communications with penalties of 1 to 4 years in prison, regardless of the relationship.
What happens if I share intimate photos that were sent to me voluntarily?
It is a crime. Article 197.7 CC punishes the distribution of intimate images without consent, even if they were obtained with permission. This is known as revenge porn.
Can messages obtained without my consent be used as evidence?
If they were obtained by violating fundamental rights, no. Unlawful evidence must be excluded from the proceedings (Article 11 LOPJ). Your attorney can request the nullification of such evidence.
Is accessing another person’s cloud a crime?
Yes. Case law equates the cloud to a digital domicile. Accessing someone else’s iCloud, Google Drive or Dropbox without authorization has the same criminal consequences as accessing their physical device.
What should I do if intimate photos of me have been shared without my consent?
Preserve all evidence (screenshots, links, profiles), report immediately and request judicial removal of the content. A criminal defense attorney can request urgent protective measures
Has your digital privacy been violated or are you being investigated for it? Consult with a specialized criminal defense attorney.
Abogado penalista en Madrid (Graduado en Derecho y ADE con Máster de Acceso a la Abogacía), experto en procedimientos complejos y técnicos en Derecho Penal. Cuenta con títulos como el Curso de DerechoPenal Avanzado impartido por magistrados del Tribunal Supremo en el Iltre. Colegio de Abogacía de Madrid.