Installing a Tracking App on Your Partner's Phone: Why It's a Crime and the Penalty

They are advertised as "family safety", "parental control" or "phone locator" apps. They install in two minutes, many hide themselves from the app drawer, and some expressly promise that the person being watched will never find out. That last detail is what turns them into stalkerware, and what moves the matter from the realm of distrust into the Criminal Code.

If You Are Accused of Installing a Spy App: What Art. 197 CP Punishes

Art. 197.1 CP punishes with imprisonment of one to four years and a fine of twelve to twenty-four months anyone who, to discover another's secrets or violate their privacy and without their consent, seizes their papers, letters, emails or any other documents or personal effects, intercepts their telecommunications, or uses technical devices for listening, transmitting, recording or reproducing sound, images or any other communication signal.

An app that forwards real-time location, mirrors WhatsApp messages or activates the microphone fits that description without difficulty. There is no need for anything compromising to actually be read: the offence is completed by the act of intercepting or installing the device, because what is protected is privacy, not the outcome.

If, in addition, restricted personal or family data recorded in files or on computer media is accessed — a copy of the browsing history, a cloud sync — Art. 197.2 CP imposes the same penalties.

The Program Itself: Art. 197 ter CP

There is a second layer that is often overlooked. Art. 197 ter CP punishes with imprisonment of six months to two years or a fine of three to eighteen months anyone who, without being duly authorised, produces, acquires for their own use, imports or in any way supplies to third parties computer software conceived or adapted mainly to commit the offences under Art. 197.1 and .2, or passwords and access codes that allow entry into a system.

In other words: buying and downloading the software with that intention already carries its own criminal reproach, regardless of what is later done with it. And whoever recommends it or installs it on someone else's phone "as a favour" falls within the verb supplying.

When It Is Aggravated

• Sharing (Art. 197.3 CP). Sharing, disclosing or passing to third parties what was discovered raises the penalty to imprisonment of two to five years. Forwarding a screenshot to a group of friends already amounts to passing it to third parties.
• Especially sensitive data (Art. 197.5 CP). If the data affected reveal ideology, religion, beliefs, health, racial origin or sex life, or the victim is a minor or a person with a disability in need of special protection, the penalties are imposed in their upper half.
• Unauthorised use of the victim's personal data (Art. 197.4 CP). Certain forms raise the range to imprisonment of three to five years.
• Gender-related motives (Art. 22.4 CP). The aggravating circumstance can apply when the control is exercised as a manifestation of discrimination based on gender.

The Line with Stalking Under Art. 172 ter CP

Electronic surveillance rarely travels alone. When, in addition, the person is watched, followed or their physical closeness sought, or persistent and repeated attempts are made to contact them without legitimate authorisation, altering the normal course of their daily life, the offence of stalking under Art. 172 ter CP arises, carrying imprisonment of three months to two years or a fine of six to twenty-four months.

And here is the decisive point in cases involving partners: Art. 172 ter.2 CP establishes that when the person offended is one of those covered by Art. 173.2 CP — a spouse or a person linked by a similarly affectionate relationship, even without cohabitation, present or past — the penalty is imprisonment of one to two years or community service of sixty to one hundred and twenty days, and no report from the victim is required. Paragraph 3 further clarifies that these penalties are imposed without prejudice to those corresponding to any offences in which the stalking acts materialised: overlap with Art. 197 CP is the rule, not the exception.

The Paradox of the Evidence: Obtained, and Useless

Many of these cases arise out of a divorce. Someone installs the app convinced they will obtain definitive proof of an infidelity or a breach. The result is usually exactly the opposite, for two compounding reasons.

The first is that Art. 11.1 LOPJ (Judicial Power Act) prevents evidence obtained, directly or indirectly, in violation of fundamental rights from having any effect. Anything captured with a spy program installed without consent is unlawful evidence, and it drags down with it whatever derives from it.

The second is that submitting that material to the proceedings amounts to documenting your own authorship: the other party then has the date, the device and the content, and frequently files a report. We have seen it become the origin of the criminal case more often than its solution.

What to Do If You Have Been Reported, and What If You Are the One Being Watched

If you are under investigation, the first thing is not to destroy anything: deleting the app or resetting the device after learning of the report worsens your position and rarely removes the trace, which usually sits in the service provider's records and in the subscription invoices. What matters is establishing exactly what was installed, what data it managed to capture, whether there was any sharing, and whether any provable consent existed.

If you suspect you are being watched, it is advisable to document before uninstalling anything: screenshots of the permissions granted, of battery and data consumption, of the list of apps with administrator access, and of login notifications. An expert report on the device is worth far more than a phone that has already been wiped.

You can consult our defence service in spyware and geolocation between partners or the analysis of Art. 197 CP and the disclosure of secrets. For an initial assessment, call us on +34 910 786 574.