Hidden Cameras: What Offence Is Recording Without Consent in Spain

Installing hidden cameras to record other people in private is an offence. As specialist criminal lawyers, we analyse the most frequent situations, the penalties involved and the usual lines of defence. The common element in every case is the same: capturing images of a person in a private setting without their consent.

Types of unlawful recording

The three most common scenarios in practice are the following:

• Cameras in changing rooms, bathrooms or bedrooms: these are spaces where the expectation of privacy is at its highest. Placing a recording device in them falls under art. 197 CP, with penalties of 1 to 4 years in prison. Merely capturing the images is already punishable: it is not necessary for them ever to be circulated.
• Upskirting: covertly recording under a person's clothing, usually in public or transit spaces, is prosecuted as an offence of discovery and disclosure of secrets. The fact that the place is public does not exclude the offence, because what the law protects is the private sphere the victim keeps reserved from others.
• Recording sexual relations: consent to the relationship is not consent to record it. Every person appearing in the images must have accepted the recording; it is enough that one of them did not for an offence to exist.

Elements of the offence

For an offence to exist, three elements must essentially concur: (1) the capture of images in a private setting, understood as one the person keeps reserved from third parties; (2) the absence of consent from the person recorded, consent which must cover precisely the act of recording; and (3) intent, that is, the conscious will to register those images in breach of another person's privacy. The technical defence consists precisely in challenging each of these elements in the specific case.

Penalties

Capturing the images is punished with 1 to 4 years in prison and a fine of 12 to 24 months (Art. 197.1 CP). If what was recorded is then circulated, the penalty rises to 2 to 5 years in prison (Art. 197.3 CP), so whoever records and then circulates the material faces a single, more serious penalty. Where the victim is a minor, the penalties are imposed in their upper half (Art. 197.5 CP), and the recording may concur with the child sexual abuse material offence of Art. 189 CP, carrying 1 to 5 years in prison (5 to 9 if the minor is under 16): in that case the law punishes not only the intrusion into privacy but also the very nature of the material obtained, which considerably aggravates the criminal response.

Lines of defence

The usual defence strategies are built on four pillars:

• A legitimate security camera: showing that the device was installed visibly, for a genuine security purpose, and without pointing at reserved spaces such as toilets or changing rooms.
• A non-private space: disputing the nature of the place recorded. Criminal protection is reserved for settings where there is a reasonable expectation of privacy, and not every uncomfortable recording reaches that category.
• Consent: proving that the person knew about and accepted the recording, for instance through messages or witnesses. The burden of proving the offence always lies with the prosecution.
• Lack of authorship: in shared homes, premises with several employees or devices accessible to third parties, it must be established who installed and controlled the camera. Digital forensic expertise and the chain of custody of the seized devices are decisive here.

What to do if you are under investigation

These proceedings usually begin with a complaint, followed by the seizure of devices (cameras, phones, computers) and their forensic analysis. Before giving a statement as a suspect, it is essential to speak with a specialist lawyer, review how the evidence was obtained and preserve anything that shows consent or a legitimate purpose for the installation. An irregularity in the search or in the imaging of the devices can render the evidence null and void, which is why a technical review of the police action is always one of the first steps of the defence.