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The recent conviction of a journalist for revealing aspects of the summary of the murder of Laura Luelmo is a challenge to the jurisprudence established by the Supreme Court and the prevalence of the right to information over the right to privacy. The jurists consulted by elDiario.es anticipate that the Superior Court of Justice of Andalusia or, later, the Supreme Court will overturn the ruling of the Provincial Court of Huelva. One of those jurists sentences: “A conduct protected by a fundamental right, that of information, can never be considered unlawful.”
The sentences handed down for revealing secrets in strange cases affect journalists and, if they do, it is with very specific characteristics. In the summer of 1996, a newspaper in the Canary Islands published a brief article entitled ‘AIDS, kitchen and jail’ in which it offered the identities of two prisoners infected with HIV who worked in the kitchen of the center of Salto del Negro.
The journalist had had access to a list of the health data of the inmates, in this case those infected by the aforementioned virus, and another detailing which inmates worked in the prison kitchens. He checked it and found two matches, which he published with the names of the inmates, at a time when AIDS was a highly stigmatized disease.
The professional was convicted as responsible for a crime of revealing secrets, a sentence that was later confirmed by the Supreme Court. In the ruling of this instance, the conviction was confirmed with the incomplete defense of the legitimate exercise of a right [de la información], sentenced to one year in prison, a 12-month fine and was disqualified from working as a journalist for one year. He likewise had to pay compensation of two million pesetas to the two inmates, resulting in the publishing company being subsidiary civil liable.
The Supreme Court ruling, whose rapporteur was José Jiménez Villarejo, recognized the fact that two prisoners infected with AIDS were stationed in the prison kitchen, but considered it absolutely inconsequential for the exercise of the right to information to reveal their identities. “In no way will the performance cease to be typical [delictiva]nor can it be covered by a complete exemption from the legitimate exercise of a right, when after illegally accessing the data, it is published in the context of a news item that does not need it”, the ruling stated.
The magistrates of the Audiencia de Huelva who have sentenced the then journalist from Huelva Información criticize that she offered information in her information that they did not consider necessary to ensure the right to information of citizens, although these are very different from those that published was sanctioned the previous judgment of the Supreme Court.
In the case of the crime against Laura Luelmo, the identities of the victim and the aggressor were known. It cannot be equated, therefore, with the prison sentence handed down in Murcia against a journalist for publishing the identity of the victim of ‘La Manada’ in Pamplona.
In the case of Huelva, the police commanders who arrested the accused had even given press conferences offering information on the case. What the magistrates reprimand is that the information reproduced the details of how the murder of the young teacher occurred, obtained from the reports incorporated into the summary. Even so, sources from the current Criminal Chamber of the Supreme Court disagree on the sentence that convicted the journalist at the end of the nineties and consider that the information is not punishable as a crime of revealing secrets.
Other legal sources link the sentence against the Canarian newspaper more with the cases of obtaining and disseminating medical data that end in a conviction for revealing secrets, where journalists do not usually intervene. The Criminal Chamber of the Supreme Court sentenced a nurse from the Aragonese Health Service to two years in prison and six years of disqualification in 2021 for having accessed the medical history of an old friend of hers from the health center where she worked .
More recently, in February of this year, another nurse was sentenced to two years and nine months in prison by the Superior Court of Castilla y León for accessing the medical records of a co-worker on 18 occasions over 14 months, with whom she had bad relationship and that he was on leave.
This type of crime is also often associated with situations of violence against women or sexual assaults. For example, when 15 young people from the town of Ordes in A Coruña were sentenced for broadcasting an intimate video of a neighbor. Also when a rapist records the sexual assault that he perpetrates.
The crimes of discovery and disclosure of secrets constitute a chapter of the Penal Code within the title of those committed against privacy, the right to one’s own image and the inviolability of the home. They also include crimes committed between individuals when a third party appropriates information, in whatever medium, from someone who has not given permission. The sentences provided range from one to five years.
Article 198 is reserved for public officials, which punishes those who use this condition to reveal secrets with the upper range of the aforementioned penalties and is disqualified from six to twelve years.
Convictions are handed down relatively frequently against members of the Security Forces who have access to databases with confidential data. Sometimes they obtain and filter them in exchange for perks, which implies bribery in addition to the crime of revealing secrets, and in others they make personal use of them, such as in contexts of sexist violence.
In 2021, two national police officers who worked in Madrid police stations were sentenced to fines of 3,900 euros for the crime of revealing secrets. The police officers accessed the databases to consult possible criminal records, information that other colleagues of theirs, active or retired, later sold to foreigners who wanted to complete the procedures to obtain residence in Spain. The Prosecutor’s Office had come to request four years in prison for the agents.
Between 2015 and 2016, a police officer assigned to the Provincial Information Brigade of Madrid, dedicated to combating terrorism, youth gangs or hate crimes, used his position to access restricted databases. He searched them for information from women he had established relationships with through dating apps. When they cut off the relationship, he would threaten them with the secret information.
While threatening one of the women with denouncing her, he wrote to her: “I hope no one of your loved ones has a stroke again.” The policeman knew the information because it was part of the report of a complaint that she had filed in the past. The Supreme Court sentenced the agent for a crime of revealing secrets to eight years in prison.
Perhaps the best known of the cases for revealing secrets is the one that keeps the retired commissioner José Manuel Villarejo under investigation, who prepared dossiers for clients with information that other police officers, also active, allegedly provided him in exchange for perks.
Villarejo, unlike other minor cases, had among its clients Ibex companies or members of high society, who paid significant sums for data to harm the competition or people with whom they had animosity. The first sentence of the Tandem macro-cause will be announced in the coming days.
