Protección penal de la intimidad. Una revisión crítica a propósito del nuevo artículo 197.7 del código penal español

Abstract

In order to guarantee the right of privacy, the State must use the tools provided by the legal framework to ensure that this fundamental value is granted the commensurate level of legal protection. However, in the case of Spanish legislation, it would appear that said protection has evolved from an essentially inadequate system (throughout the entire legislative tradition) to the horror vacui of the current Chapter of the Penal Code that deals with the discovery and revelation of secrets, which, furthermore, undergoes continual distortion through the inclusion of new crimes that, from a systematic perspective, are inconsistent with the legal right of privacy. In the light of this situation, firstly, we will analyze the underlying meta-legal foundations, from the point of view of the individual and the principles of liberalism, and their connection to the first demonstrations relating to the right of privacy. Secondly, we will analyze the right of privacy in a national sense, with regard to both the constitution and legislation governing the right to privacy, in order to demonstrate the existing overlap with criminal law. Thirdly, we will present a critical analysis of the various crimes against privacy. Fourthly, we will discuss the legal protection of image rights, before examining the current Penal Code Art. 197.7 CP, introduced by the Organic Law 1/2015 of 30 March, which deals with, inter alia, its parliamentary procedure, the underlying social philosophy, the influence of the STGB §201A and the different elements inherent to the crime. Lastly, by way of an epilogue, we will deal with the remaining precepts introduced by the 2015 penal reform concerning the discovery and revelation of secrets.