January 28, 2021

Recording a possible infraction from a balcony is not a crime – La Provincia


Recording from balcony and the subsequent dissemination in social networks of images in which people are seen on public roads allegedly breaching the confinement to which the state of alarm forces would not constitute an infringement of the right to privacy and self-image, and would not be criminally prosecuted, according to legal experts.

Jurists Consulted by Europa Press agree that recording on public roads does not constitute an infringement of the right to secrecy of communications and that, in addition, recording videos of possible criminal scenes “is freely and discretionaryly feasible” when done in public places.

They also remember that the jurisprudence considers that only judicial authorization is required for the clandestine capture of images or sounds at home or in private places. However, other jurists consulted warn that although a priori there is no criminal offense in the fact of recording third parties whenever they are on public roads, it can be an intrusion because when publishing on the network the complaint that a person could be Failing to comply with the Government decree, a defamation can be given. In any case, they point out that if the person recorded decides to go to court, it would be a civil matter, never a criminal one.

Social networks

Despite the fact that most of the jurists consulted agree that there is no criminal offense In the recording, tax sources warn that publishing these images on networks such as Facebook, Instagram or Twitter without authorization from the alleged infringer may violate the right to image protection, and may thus have civil repercussions.

In this sense, they cite the Organic Law of 1982 on civil protection of the right to honor, personal and family privacy and self-image, and article 18 of the Spanish Constitution to highlight that these rules would protect civil actions. “The right to honor, personal and family privacy and self-image is guaranteed. The address is inviolable. No entry or registration may be made there without the consent of the owner or judicial resolution, except in the case of flagrant crime,” reads the Magna Carta in its article 18.

On the other hand, they advise that in case of possess images in which a possible crime is detected – for example a person running to do physical exercise – these are made available to the police. In fact, they indicate that as evidence they will have the validity and importance that a magistrate dictates at the time.

Data protection

“Like everything in social networks, you have to be careful with the images that are captured because you can also compromise the protection of personal data and the image of another person,” they point out, and then postulate that good sense must prevail, attend to what it is reasonable, and be respectful with the image of the neighbor.

And they insist that if the aforementioned were seen on social networks, they could file a lawsuit to assess whether there is a violation of the right to honor. They also point out that if necessary, the Spanish Data Protection Agency can be used to present a lawsuit for administrative offense.

All in all, they insist that recording on public road it is not a crime, it does not affect any fundamental right and therefore the authorization of a judge is not necessary. And most of the sources consulted believe that it does not affect the privacy of the person recorded, or their right to honor.

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