Sexting: Criminal Lawyers

Sexting —from "sex" and "texting"— consists of voluntarily and consensually sending sexual content images, videos or messages between persons. Between adults in consenting relationships, sexting is not a crime and is protected by communication freedom and the right to personality development (Art. 10 of the Spanish Constitution). However, the criminal frontier is decisively crossed when one of three typical circumstances concurs: the distribution without sender's consent (Art. 197.7 CP, known as "revenge porn"), the participation of minors in any position (Arts. 182 and 189 CP), or the instrumental use for sexual or economic blackmail (sextortion, Arts. 169 and 243 CP). Consolidated Supreme Court case-law clarifies the typical elements.

The offence of non-consensual distribution of intimate images (Art. 197.7 CP, introduced by LO 1/2015) protects the fundamental right to personal and family privacy (Art. 18.1 of the Spanish Constitution) and informational self-determination. It sanctions with 3 months to 1 year of prison or 6 to 12 months' fine whoever, without authorization of the affected person, distributes, reveals or assigns to third parties images or recordings of that person, obtained with their consent in a home or place out of third parties' sight, when the divulgation seriously damages their personal privacy. The penalty is aggravated in its upper half when one of three circumstances concurs: that the acts have been committed by the spouse or person linked or who has been linked by similar affective relationship, that the victim is a minor or person with disability, or that the acts have been committed with lucrative purpose.

The digital commissive modalities have proliferated with technological development. The distribution on open social networks (Twitter, Instagram, TikTok) has potentially viral reach and quantitatively devastating damage for the victim. Distribution in closed messaging groups (WhatsApp, Telegram), although more restricted, remains typical when it reaches third parties outside the initial relationship. Uploading to non-consensual pornographic sites (PornHub, XVideos, "revenge porn" sites) quantitatively aggravates damage and temporal reach. The creation and distribution of intimate deepfakes through artificial intelligence is an emerging modality: although the real body or face are not involved, consolidated case-law and LO 8/2021 have expanded the typical catalog to include these modalities. "Upskirting" or "downblousing" —surreptitious recordings under skirts or through necklines— configures an aggravated type of Art. 197.5 CP.

Technical defense is built on four axes. First, express or tacit consent for distribution: when images were previously shared in groups, published on open social networks, or there was revocable consent for circulation, the typical element of consent absence fails. Second, the challenge of digital authorship: the offence requires proving the accused effectively distributed the images; in scenarios where multiple persons had access to the material (previous partners, shared devices, cloud access), or where the account from which distribution occurs is not exclusively controlled by the accused, the in dubio pro reo principle may operate. Third, the audit of digital chain of custody: screenshots provided as evidence can be easily manipulable; only forensic extraction with cryptographic hash, notarial act of online content, or certified computer expert evidence guarantees full evidentiary validity. Fourth, the absence of serious privacy damage: the type requires effective and relevant impact; when the reach was minimal or the victim does not prove effective damage, the typical element may fail.

In current forensic practice, non-consensual intimate image distribution proceedings have multiplied after the reforms of LO 1/2015, LO 8/2021 on integral protection of childhood and LO 10/2022 on integral guarantee of sexual freedom. Consolidated case-law has refined typical elements and expanded the catalog of modalities. Organic Law 1/2025 on Justice Service Efficiency has modified procedural deadlines and reinforced guarantees on electronic evidence. Directive 2024/1385/EU on violence against women has harmonized the European framework. At Alonso Sala, our criminal lawyers specialized in sexting and non-consensual distribution intervene in a dual function: as private prosecution on behalf of victims, we request urgent precautionary measures for content removal (EU Regulation 2019/1150 on online platforms), articulate computer expert reports to prove authorship, and build aggravated civil liability strategies; as defenders of the accused, we articulate defenses based on prior consent, challenge of digital authorship and evidentiary nullities due to chain of custody defects. In both roles, immediate action is critical: the faster content removal is requested, the lesser the reach of irreparable damage.