Non-Consensual Sexting Lawyer (Art. 197.7 CP)

Non-Consensual Sexting: Art. 197.7 CP

Non-consensual sexting consists of the distribution, disclosure or transfer to third parties of intimate images or audiovisual recordings that had been received or obtained within a relationship of trust (a romantic, partner or friendship relationship) without the affected person's consent. This conduct — also known as revenge porn where carried out for revenge after a breakup — is specifically criminalised in Article 197.7 of the Spanish Criminal Code and is one of the most frequent forms of digital violence affecting image and privacy. Article 197.7 CP punishes anyone who, without the affected person's authorisation, distributes, discloses or transfers to third parties images or audiovisual recordings of that person obtained with their consent in a home or any other place out of the sight of third parties, where the disclosure seriously harms that person's privacy. The penalty is 3 months to 1 year's imprisonment or a fine of 6 to 12 months. The penalty is imposed in its upper half where the acts are committed by a spouse or a person linked by a similar emotional relationship, even without cohabitation; where the victim is a minor or a person with a disability in need of special protection; or where the acts are committed for a profit-making purpose.

Protected Interest and Constituent Elements

The protected interest is personal privacy (Art. 18.1 of the Constitution) in its specific dimension of control over one's own intimate image already known to third parties in contexts of trust. The constituent elements are: (1) prior lawful obtaining of the images with the affected person's consent; (2) an intimate context of capture (a home or another place out of the sight of third parties); (3) subsequent distribution, disclosure or transfer to third parties; (4) the absence of authorisation from the affected person for that distribution; and (5) serious harm to their personal privacy.

Forwarding and Successive Distribution

A particularly relevant technical question is the liability of those who forward content they have received. Case law has consolidated the view that each act of distribution is independently punishable: the first distributor, successive forwarders and those who share the content in messaging groups each answer for their own act of distribution, even where they were merely recipients. Only private storage without distribution falls outside the offence. The defense must analyse, case by case, the possible existence of a mistake as to authorisation to forward.

The Requirement of Serious Harm

The offence requires the distribution to seriously harm the victim's personal privacy. This element is subject to case-law discussion: the harm is assessed against objective circumstances such as the sexual or intimate content of the images, the identifiability of the person, the reach of the distribution, the range of recipients, the duration of exposure and the reputational impact. The defense may argue the absence of serious harm where circumstances objectively reduce the impact.

Defense Strategy

We build the defense around: discussion of the serious harm to privacy; analysis of the material authorship of the distribution; challenging the digital evidence and the chain of custody; mistake as to an element of the offence regarding authorisation to distribute; implied consent where the victim had previously distributed the images; analysis of the context in which the images were obtained; assessment of mitigating factors (voluntary removal, reparation, undue delay); and, where appropriate, discussion of the aggravated forms. We act before the Investigating Courts, the Courts for Violence against Women (where appropriate), the Criminal Courts and the Provincial Courts.