Breach of Professional Secrecy Lawyer (Art. 199 CP)

Breach of professional secrecy is defined in Article 199 of the Spanish Criminal Code, among the offences of discovery and disclosure of secrets that protect the personal and family privacy recognised in Article 18 of the Constitution. Unlike the unlawful access to communications or data (discovery and disclosure of secrets under Art. 197 CP), here the secret is not obtained unlawfully: it is known lawfully through one's office, employment relationship or professional practice, and the criminal conduct is to improperly divulge or disclose it. As criminal lawyers specialising in privacy offences in Madrid, we build the technical defence of professionals, employees and companies facing these charges.

Legal Framework: Article 199 CP

The provision contains two clearly distinct forms:

• Art. 199.1 CP (basic offence): punishes anyone who discloses another person's secrets known by reason of their office or employment relations. The penalty is imprisonment of one to three years and a fine of six to twelve months. It covers employees, workers and service providers who, without being registered professionals subject to confidentiality, access another's confidential information through their position.
• Art. 199.2 CP (aggravated offence): punishes the professional who, in breach of their duty of confidentiality or reserve, divulges another person's secrets. The penalty is imprisonment of one to four years, a fine of twelve to twenty-four months and special disqualification from that profession for two to six years. This is the case of the doctor, lawyer, psychologist, notary, journalist, adviser or any professional bound by a specific duty of reserve.

The greater severity of 199.2 is justified by the qualified trust the victim places in the professional and by the duty of confidentiality imposed by the relevant professional and ethical rules (medical confidentiality, the lawyer's professional secrecy under Art. 542.3 of the Judiciary Act, etc.). Special disqualification is a particularly damaging consequence, as it prevents the practice of the profession for years.

Criminal Conduct and Protected Interest

The offence requires three elements: (1) the existence of a genuine secret belonging to another —reserved information, neither public nor common knowledge, affecting a third party's private sphere—; (2) that the person knows it lawfully through their office, employment relationship or profession; and (3) an act of disclosure or divulgation to unauthorised persons, carried out with intent. Mere negligence in safekeeping is not punished, but the conscious disclosure is. Nor does any data suffice: it must be reserved information whose dissemination harms or may harm its holder.

Distinction from the Ethical Duty

A central key to the defence is distinguishing the ethical (deontological) breach from the criminal offence. Professional secrecy has a professional-body and disciplinary dimension (sanctions by the relevant professional association) and a criminal dimension (Art. 199 CP). Not every breach of the duty of reserve reaches criminal relevance: many forms of conduct remain in the disciplinary sphere without amounting to the offence, particularly where intent is lacking, where the information was not strictly secret, or where a ground of justification applies. Identifying this boundary is decisive to avoid a criminal conviction and, with it, disqualification.

Defence Strategies

The defence may rest, depending on the case, on: consent of the holder of the secret, express or implied, which excludes the offence; absence of a secret nature of the information (data already public, common knowledge or known to third parties); lack of intent to disclose (inadvertent divulgation, error as to the reserved nature); necessity or performance of a duty (for instance, the legal obligation to report certain crimes, the communication to health or judicial authorities, or the prevention of a serious and imminent harm); and the existence of a prevailing legitimate interest justifying the communication. The procedural requirement is also essential: under Article 201 CP, the offence is only prosecutable upon a complaint by the aggrieved party or their legal representative, so the absence of a valid complaint bars the proceedings.

Criminal Consequences

The basic offence under 199.1 carries imprisonment of 1 to 3 years and a fine of 6 to 12 months. The aggravated offence under 199.2 raises the penalty to imprisonment of 1 to 4 years, a fine of 12 to 24 months and special disqualification from the profession for 2 to 6 years. Alongside the penalty, civil liability for the harm caused to the victim may be declared. The defence focuses on avoiding conviction or, alternatively, on the most favourable sentencing and on the suspension of imprisonment where the legal requirements are met.

We act before the Investigating Courts, the Criminal Courts and the Provincial Courts throughout Spain. For a confidential assessment of your case, you may contact our firm at Velázquez 27, Madrid, or by phone at 91 078 65 74.