Is it a crime to gossip your partner's cell phone?

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Your partner has gone to the bathroom and take advantage of the fact that he has not taken his cell phone to unlock it and take a look at his messages . Although it seems like a mischief or justifiable minutiae for your jealousy, you are doing something illegal . Specifically, you would be committing a crime of Discovery and Disclosure of Secrets referred to in article 197 of the Criminal Code.

"Although this article is intended for postal mail and other documents [dated 1995], it is perfectly applicable to mobile phones," explains the prosecutor, expert in computer crime and technological crimes, Escarlata Gutiérrez. "As it happened with the letters - that it was not necessary to seize them, it was enough to open the envelope and see the content - it happens with the telephones ", account.

But what exactly would a person have to do to cross the line of legality? "It is enough to find out a secret, of what is reserved from the knowledge of third parties. It may be to discover that your partner has an affair or find out how much money he has earned with an activity," Gutierrez explains. "There has to be a fraud, a knowledge and a will," he says.

That is, if someone voluntarily lends us his mobile phone to watch some videos, some photos or play and because of a notification we discover some secret of the owner we would not be committing any crime.

In addition, as paradoxical as it may be, for the crime to exist, it is necessary to succeed when accessing your partner's phone . That is, "you have to have managed to unlock it and get to read the conversations or get when accessing the information," says the prosecutor.

But what would happen if who tries to access the information but is not successful ?

"There is no jurisprudence in this regard on this type of crime in the degree of attempt," he acknowledges. "In fact," he continues, "I have only two convictions in this case."

Convictions on which the prosecutor does pedagogy through her public Twitter profile that has more than 10,000 followers.

The first one dates from June 21, 2016 and the accused was sentenced to one year in prison and a fine of 12 months for a crime of discovery and disclosure of secrets. In addition, he also received two convictions for illegal detention for which the offender was sentenced to nine years and one day in prison. In this case, the conviction for the discovery and disclosure of secrets could have occurred because the victims were tied together, held against their will and forced to provide their mobile phone's pin number.

The second, most recent, dates from June 26, 2019 and the woman was sentenced to one year and two months in prison . In this case, the culprit was caught due to a bungling modus operandi: he took advantage of a moment of distraction from the victim and read a confidential conversation on WhatsApp to then make screenshots and send them by email from the owner's terminal .

However, it is normal that , unless the gossip is discovered in fraganti or reproaches him for what he has found, there is no documentary trace that a third party's cell phone has been snooping around.

"In these cases, there would simply be the statement of the affected person that would serve as evidence provided the presumption of innocence is not distorted," acknowledges the prosecutor. "That is to say," he continues, "that it is not done for spurious reasons, that there is some objective fact and that there is a persistence in the incrimination. That is, that it should say the same to the police, in the instruction and in the trial."

In addition, there is an additional complication in these processes. "Unless the affected person is a minor, incapable or invalid person, the affected person is required to report. However, once the fact has been denounced, it is not possible to back down and it is not necessary to pay a lawyer to exercise the private accusation, "says Gutierrez.

In spite of everything, he recognizes these assumptions "they are something very difficult and infrequent in Spanish justice ."

The answer to this rarity would be found in two factors: the lack of knowledge that this type of behavior is a constitutive act of crime and the fact that a judicial process is always cumbersome and would require the testimony of the people around them, which It discourages people from starting the process.

Also, according to Gutierrez, " the forgiveness of the offender extinguishes the criminal action", so that if the victim chooses to forgive, the party could be without punishment.

Although gossiping another person's cell phone is a crime that rarely ends up condemning this action remains illegal, in addition to a total lack of respect and education .

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