A single image could be enough for sexting conviction

The Supreme Court (TS) has clarified that sending a single image of intimate content to third parties is sufficient to convict them of ‘sexting’, as long as the objective is to “denigrate” the affected person, in a case where the court revoked the acquittal of a man who disseminated a sexual photo of his partner with said intention, sentencing him to a fine for revealing secrets.

The Criminal Chamber, in a ruling by Judge Julián Sánchez Melgar, agrees with the Prosecutor’s Office, which appealed the decision of the Barcelona Provincial Court to acquit the man, after he received the same sentence that has now been imposed on him.

According to the proven factual account, the couple was in their common home when an argument broke out that ended with the convicted man breaking televisions. Taking advantage of the fact that his partner went down to the street to wait for the police and medical services, he also took possession of several things that were not his, such as a laptop and jewellery.

In this context, he also sent a friend via WhatsApp a photo of sexual content of his partner that he had taken with consent but without permission to share it. The photo was shared “with the purpose of denigrating intimacy” of the affected person, stated the criminal court.

For all this, he was sentenced to a fine of ten months at a rate of 8 euro per day and to pay his partner 3,800 euro in material and moral damages, being acquitted of the crimes of damage and theft for attending a “acquittal excuse.”

Not satisfied with the ruling, the man appealed and the Barcelona Court agreed with him, also absolving him of the crime of revealing secrets, which led to the Prosecutor’s Office challenging it before the Supreme Court.

The Provincial Court revoked the conviction, taking advantage of the literality of article 197.7 of the Penal Code (CP), which punishes “anyone who, without authorisation from the affected person, disseminates, reveals or transfers to third parties images or audiovisual recordings of that person obtained with their consent in a home or in any other place out of the reach of third parties, when disclosure seriously undermines the personal privacy of that person.

For the judicial headquarters, as the legal provision “refers to images in the plural, suggestive of more than one”, “the submission of a single image would not meet the typical requirements” of the crime of revealing secrets. The Barcelona Court understood that, since it was a single photo, “error in sending or carelessness could not be ruled out.”

The Supreme Court dismantles this thesis explaining that, apart from the fact that criminal offences cannot be interpreted with such excess of literal rigor, in this case the “error theory” is not applicable because the proven facts clearly show that the convicted person sent the photo “with the purpose of denigrating privacy” from his partner, a phrase – says the TS – “sufficiently comprehensive of the intentionality”. “From our point of view, there is no doubt,” they say.

Consequently, the Second Chamber upholds the appeal of the Public Prosecutor’s Office, revokes the sentence of the Provincial Court and recovers that of the criminal court, imposing the aforementioned fine.

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