The Supreme Court confirms 4 years in prison for a man who installed a camera to spy on his ex-partner

The sentence says that the use of the victim's router to activate the camera supposes a "plus of seriousness"

MADRID, 27 Ene. (EUROPA PRESS) -

The Criminal Chamber of the Supreme Court (TS) has confirmed the sentence to four years in prison for a crime of discovery and disclosure of secrets aggravated to a man for installing a surveillance camera in the air conditioning of his ex-partner's bedroom and activating it with the access key of the victim's router.

In the sentence, a presentation by the president of the Second Chamber, Manuel Marchena, it is stated that the use of a personal password represents "a plus of seriousness in the attack on the privacy sphere of any person because it implies an added seizure of a data of personal character".

According to the proven facts, the woman, who had had a four-year relationship with him, asked him in 2018 to take care of their son at her home, in the city of Elche. He took the opportunity to install the device, "whose lens was directed at the bed, with the intention of controlling" her ex-partner.

"To connect to the router, and activate the operation of the camera, he used the private password" of the woman, recalls the sentence. This situation lasted until she changed the access passwords to her router.

In September of that year, the victim detected the existence of the aforementioned camera and filed a complaint, although - remember the resolution - he had previously filed another against the defendant on suspicion that he had installed a hidden Skype on his computer and through which, when the victim used his own laptop, the defendant could control everything he did, spoke or who was at home. THE UNCONSENTED AUTHORIZATION OF THE ROUTER

However, the Supreme Court affirms that the facts included in the sentence fully fit into the crime for which he has been convicted and points out that the aggravation of the sentence does not derive, as the defense seems to understand, from the capture of some images by means of a recording device hidden in the air conditioner and aimed at the bed, but the "inconsensual use" of the router password.

The convicted person in his appeal in cassation before the Supreme Court considered that the Penal Code had been improperly applied to the extent that "it is not possible to understand what kind of personal data of the alleged victim he would have used without his authorization, other than those images that could have been captured from inside the house".

He reasoned that access to the Wi-Fi password, which would have allowed the defendant to activate the recording device, had the consent of the complainant, given that both had shared a home for several years.

In the resolution, the court analyzes the concept of personal data included in Regulation (EU) 2016/679 of the European Parliament and of the Council, of April 27, 2016, regarding the protection of natural persons with regard to the treatment of your personal data and to the free circulation of this data.

The Chamber indicates that any personal identification number and, more specifically, "an online identifier" constitutes personal data subject to protection. Hence -according to the ruling- that any numerical or alphanumeric series that allows access to any telematic service is data from an unidentified, but perfectly identifiable person.

In fact, it explains that this numbering capable of providing an enabling response for access to an automated service replaces the physical identification with a virtual identification, associated with that uniquely owned key.

It adds that in this case the improperly used router password was the one that, as expressed in the first instance judgment, allowed the defendant to obtain the images that compromised the privacy of the victim.

The Chamber clarifies that it does not address, to the extent that it has not been the subject of debate, the intense impact of the facts declared proven in what has been called the hard core of privacy, namely, "the invasion of that space of exclusion that every citizen draws in front of the others".

And it is that the defendant "placed a surveillance camera inside the air conditioning unit, located in the room (...), whose lens was directed at the bed, with the intention of controlling (...)". "It is not difficult to imagine the effect that this interference by the defendant could have, during a period of time that in the most favorable hypothesis exceeded two months, in the space of privacy that defines the bedroom of any person," the court underlines. .

As a consequence, it dismisses the appeal filed by the convicted person against the ruling of the Provincial Court of Alicante that confirmed the one handed down by a Criminal Court of Elche.

In addition to a four-year prison sentence, the court sentence imposed on the appellant as the perpetrator of a crime of discovery and disclosure of secrets, with the aggravating circumstance of kinship, the prohibition to approach less than 300 meters from his ex-partner, his address, place of work or any other where it is located, as well as communicate with it by any means, physical or telematic, for 5 years. In his appeal, he complained about the lack of proportionality of the sentence imposed on him and maintained that this key was known.