Voyeurism and the covert recording of intimate images: what Article 197 CP punishes

Voyeurism and the covert recording of intimate images are not merely socially reprehensible intrusions: when they reach into a person's private sphere, they amount to an offence against privacy. The Spanish Criminal Code (CP) classifies this conduct under the discovery and disclosure of secrets in Article 197, a broad provision covering everything from a hidden camera in a changing room to the sharing of an intimate video. As a criminal defence firm acting in offences against privacy, we explain in this guide what conduct is punished, what penalties apply and the lines along which a defence is built, with the rigour that so sensitive a subject demands.

What Article 197.1 CP punishes

Article 197.1 CP punishes anyone who, in order to discover another person's secrets or breach their privacy, and without their consent, uses technical devices to record or reproduce images or sound, or intercepts their telecommunications. The penalty is one to four years' imprisonment and a fine of twelve to twenty-four months. Most voyeurism scenarios fall within this offence whenever a camera, phone or other device is used:

• Hidden cameras in changing rooms, toilets or bedrooms: spaces where the expectation of privacy is at its highest. Placing a device that records what happens there strikes at the very core of private life.
• Upskirting: the surreptitious recording underneath a person's clothing. The fact that it takes place in a public space does not exclude the offence, because what is protected is the intimate part the victim keeps shielded from the view of others.
• Recording intimate encounters without consent: consent to a sexual relationship is not consent to record it. It is enough that one of the people appearing in the images did not agree to the recording.

One point is often misunderstood and deserves emphasis: the mere act of capturing the images already completes the offence. There is no need for them to be shared or to reach third parties; recording another person's private life with a technical device, without consent, is in itself enough for the conduct to be criminal.

The reasonable expectation of privacy

The concept that runs through the entire provision is the reasonable expectation of privacy. Criminal protection does not extend to any uncomfortable image, but to one captured in a setting the person keeps shielded from others. That is why the first question in these cases is always the same: could the person concerned legitimately trust that, in that place and in that situation, no one was watching or recording them?

That expectation is at its highest inside the home, in toilets and changing rooms or in a shop's fitting rooms, and it largely persists over the parts of the body that clothing covers, even in public places — which is precisely why upskirting is punishable. By contrast, it fades or disappears in open spaces where anyone can see exactly what the device captures, without resorting to artifice to reach what is hidden. Locating the specific case on that scale is a question of fact that wholly determines how the conduct is characterised.

Sharing intimate images (Article 197.7 CP)

The Criminal Code draws a clear distinction between capturing images without consent and sharing images that were obtained lawfully but whose disclosure was never agreed to. For this second situation there is a specific offence, Article 197.7 CP, aimed at anyone who, without the authorisation of the person concerned, shares, discloses or transfers to third parties images or audiovisual recordings obtained with that person's agreement in a home or any other place beyond the view of others, where the disclosure seriously undermines that person's privacy. This is the typical case of sharing an intimate video recorded with consent within a relationship. The penalty is three months to one year's imprisonment or a fine of six to twelve months.

The same paragraph provides that the penalty is imposed in its upper half where the conduct is committed by a spouse or by a person linked to the victim by an analogous emotional relationship — even without cohabitation — where the victim is a minor or a person with a disability in need of special protection, or where there is a profit motive. The distinction matters, because both the penalty and the defence strategy differ depending on whether the case involves covert recording (Art. 197.1) or the non-consensual sharing of material obtained with permission (Art. 197.7).

Aggravating forms, sharing what was captured, and concurrence

Article 197 sets out situations that increase the penalty and offences with which the conduct may concur. Knowing them is essential to gauge the criminal exposure correctly:

• Sharing what was covertly captured: if the images obtained under paragraph 1 are shared, disclosed or transferred to third parties, the penalty rises to two to five years' imprisonment (Art. 197.3). A person who records and then shares answers for conduct more serious than mere recording.
• Data concerning sexual life or a specially protected victim: where the conduct affects data revealing a person's sexual 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 (Art. 197.5).
• Concurrence with sexual offences: if the images capture a minor in terms amounting to child sexual abuse material, the conduct may concur with the offences under Articles 189 and following, which substantially aggravates the response. The exact characterisation depends on the content of the material and the age of the person concerned.

Given the gravity of these consequences — and the reputational and professional impact of a charge of this kind — the precise characterisation of the facts from the outset of the proceedings is decisive.

Lines of defence

With full respect for the presumption of innocence, the defence against a charge of voyeurism or covert recording is usually built around several lines:

• Absence of an expectation of privacy: challenging whether the space or situation recorded was genuinely private. Criminal protection does not extend to every recording, but to one that intrudes on a setting the person legitimately kept beyond the view of others.
• Consent: establishing that the person knew of and agreed to the recording — and, where relevant, the sharing — through messages, witnesses or other evidence. The burden of proving the offence always lies with the prosecution.
• Legitimate purpose of the device: showing that the camera was installed in plain sight, for a genuine security purpose, and was not pointed at private spaces such as toilets or changing rooms, which negates any intent to breach privacy.
• Authorship: in shared homes, premises with several employees or devices accessible to third parties, it must be established who installed and controlled the device. Digital forensic analysis and the chain of custody of the seized equipment are decisive here.
• Critical review of the evidence: the way the devices and files were obtained and brought into the proceedings is a critical point. An irregularity in the search or in the data extraction may render the evidence void.

In every case, the early involvement of a lawyer makes it possible to fix the account of the facts, identify and preserve the evidence and prepare the strategy before the first statement is given. We work to ensure that the criminal response is strictly confined to what the proven facts can support. This article is for information purposes only and does not constitute legal advice on any specific case.