What to keep in mind so that technology does not give you problems
WhatsApp groups are dangerous. And we are not talking about the hassle of organizing a joint gift or a weekend get-together like this. We are talking about more serious issues, which have to do with the law. Two experts in Law and data protection open our eyes to some common behaviors that could get us into trouble.
Starting with something as common as being put in a group. «The creation of a chat is not outside the data protection regulations. To add a person to a professional group or for commercial purposes, it is necessary to ask for prior consent”, says Eduard Blasi, lawyer and professor of the data protection postgraduate course at the UOC University.
The key here is the word ‘professional’. Because we are not talking about the group of six or eight colleagues that is created to arrange a vacation, but about a school chat, for example. And the latter could lead to a complaint with the Spanish Data Protection Agency depending on the circumstances. In this specific case, what makes the difference is if your phone number has been used by the school itself without asking for authorization or if it has been used by a friend. «If the chat is opened by the school, it would need express and specific permission to put the participants in that group. If not, you can file a complaint”, clarifies Borja Adsuara, Doctor of Law and expert in digital strategy. The issue that could motivate the sanction, he explains, is that the rest of the group members can see your phone number and this is personal data that is protected by law.
Now let’s go to the case that the chat is opened by one of the parents of the school. Would there be a possible sanction? Depends. The law can intervene in communications that occur outside the so-called domestic sphere. “If someone spreads our phone number to a large number of ‘friends’ or in the open (for example, in a social network open to the public, accessible by third parties), the exception could hardly be applied to the domestic sphere and the sanction could exist”, Blasi clarifies. Although there is no jurisprudence in this regard, it is considered that, after twenty users, this is already outside the domestic sphere and, therefore, authorization is required.
“By adding these contacts, there is data that is inevitably exposed —such as the photo, name, surname or mobile phone number—, and this violates confidentiality, an action similar to sending an email to many people without a blind copy », says the lawyer. In fact, when it comes to a corporate group with members who do not know each other, the specialist recommends the distribution list (on WhatsApp) instead of a group, “which allows the sending of individual messages without exposing third party data”.
Look at the couple’s cell phone
Currently there is no law that regulates the filtering of WhatsApp conversations or specific to each technological tool. But this does not mean that there is no control, since general laws apply and digital privacy is a right that we have to respect. In any case, in 2015, article 197.7 of the Penal Code was reformed to also protect privacy in the actions we carry out with our mobiles (WhatsApp conversations, publications on social networks, audio recordings…), remember Adsuara.
A more or less everyday example. Have you ever looked at someone else’s phone? (Just because it’s your partner’s doesn’t mean it’s not someone else’s) Have you typed someone else’s mobile password to access content you shouldn’t have known about? Well, that is a violation of privacy and, therefore, can be punished.
And the same thing happens when we share without permission conversations that we have maintained through the mobile, or photos and videos in which a third party has participated. A ‘normalized’ gesture but which, depending on its content, “can mean up to 4 years in prison.” And be careful, because “forwarding could be subject to a sanction and also a crime,” warns Blasi. And that is so even if the images broadcast had been captured with consent. The legal consultant points out that the affected person “could claim compensation for damages” for a possible injury to their right to honor, privacy or their own image. In the most serious cases, “if private photographs, videos or audios of third parties are disseminated, a crime of discovery and disclosure of secrets could be incurred.”
Watch out for catches
Another common practice with our mobile is to share screenshots of part of a conversation that the person is part of, either with another or within a group. Is this a crime? Well, it depends on the content that is broadcast. If in that screenshot that we are forwarding something appears that could damage the honor of another person, be it data, photos or videos, this would be considered a crime, since the content of the conversation affects the most intimate core of the interlocutors.
Another different case: when in the screenshot that we spread we do not appear speaking, but other people from this group. This could indeed be a crime, since the law punishes whoever seizes someone else’s conversation and whoever spreads a conversation without being a participant in it and without the consent or authorization of the participants. We would be facing a crime of discovery and disclosure of secrets, warn the specialists consulted.