Introduction to the limits of data protection
In today's digital age, the use of social media as a tool of control
ethical through social denunciations has found in them a perfect ally
as a reporting channel, taking advantage of the benefits it offers: scope
exponential of the fact (virality) in question, “free” use and immediacy.
The above causes many users to expose facts and
personal situations that violate not only the fundamental rights of the
third parties involved but also violate the General Regulations of
Data Protection1 showing your personal data without your consent
holder.
In this article, we analyze the recent controversy of the feminist activist and
influencer Carla Galeote who records and distributes a video of her neighbor (where he is
perfectly identifiable) of a sexual nature on its TikTok network with almost more than
400,000 followers and its consequences for data protection.
Where is the limit?
A few days ago, Carla Galeote was a trending topic on social media for publishing a
A video of her 70-year-old neighbor masturbating and watching her directly (according to her) from inside his house. In the video, recorded from Carla's balcony, the septuagenarian can be clearly identified. After its release, hundreds of people expressed their outrage at the TikToker's behavior, not only because of the way she carried it out but also because of their astonishment that the protagonist is a law student and should know the serious legal consequences of her actions.
Firstly, we find two possible crimes against the retiree who has
been recorded. A crime of disclosure of secrets under art. 1972 (crimes against privacy, the right to one's own image and the inviolability of the home), and another crime against the right to honor3.
The first is more serious, it could lead to prison sentences of between 2 and 5 years, without counting possible aggravating factors such as advertising the
video through their TikTok profile.
In addition, a civil liability case could also be opened to quantify
compensation for an action of this gravity for the moral damage caused to your
reputation; since we cannot ignore the fact that the girl also monetizes
your activity on TikTok.
Likewise, we must not forget that although several rights come together
fundamental rights; such as freedom of expression and information should not be
prevail over the right to privacy and personal intimacy enshrined in
our Constitution.
From the perspective of data protection, several precepts of the GDPR are violated;
that the neighbor's video is published without his consent as a legitimate basis for the
treatment, reveals your identity (since your face is clearly recognized in the
video and is therefore identifiable) and also; the home is revealed by invading
directly your privacy in the face of a very personal and intimate act.
It should be remembered that the image is a personal data and that
publishing the video is carrying out data processing and therefore Carla
is responsible. Therefore, the right thing would have been for Carla to record the
video, should have been made available to the National Police or Civil Guard
and have filed the corresponding complaint in the appropriate place, not where it is
did.
Finally, it should be noted that, in addition to the judicial route, the affected party could also
initiate a procedure before the Spanish Data Protection Agency so that
analyze what happened.
Not everything is worth it
Public perception and legal interpretation can diverge significantly.
significant. It is evident that the injured party's behavior is obscene and
execrable for Carla who feels intimidated but the way of
proceed from this.
It is important to keep in mind that one thing is to do justice and another is to do it well.
It is different whether something seems fair or not to us in terms of morality.
The virality of videos and everything related to them is very interesting as a social phenomenon.
that this entails, creating social value judgments in parallel where
presumes the absolute veracity of public opinion, destroying life and
digital reputation in most cases of the protagonists.
Therefore, it would be very convenient to issue an exemplary sentence for
That this “new guild” and digital society take good note that not everything is worth it
and not everything can be published within the limits of fundamental rights.
Learn more interesting news about Data Protection and Regulatory Compliance in our blog.
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1 Hereinafter, GDPR.
2 Points 3, 4 and 5
3 https://noticias.juridicas.com/base_datos/Penal/lo10-1995.l2t10.html#a197 Organic Law 10/1995, of November 23, of the Penal Code (Last visited April 17, 2024)
