What is legal (and what is not) in WhatsApp? | The mail

WhatsApp groups and, in general, conversations in this messaging app, can sometimes be a minefield that ranges from the morally reprehensible to the criminal: criticism of school teachers, hoaxes that talk about food alerts, threats to an ex-partner, screenshots with private conversations, videos with sexual content... Not everything goes and there are some legal limits that should be known.

Jorge Campanilas, from the San Sebastian law firm Iurismática (specializing in New Technology Law), starts from the idea that both “Whatsapp conversations and SMS, calls, etc. they are personal communications protected either by the secrecy of communications or by the right to privacy", but this is not a letter of marque to send or disseminate whatever you want, since there are cases in which "care must be taken because what is disseminated may affect the right to honor of the other person, or they have been able to send you a video in which you are not one of the participants and you may be intruding on the privacy of the other person, ”says the lawyer, and recalls the well-known "Hormigos case".

In 2012, the sexual video starring the former socialist councilor of Los Yébenes (Toledo), Olvido Hormigos, spread like wildfire on WhatsApp. Two people were charged for having spread it: a soccer player -ex-partner of the councilor- who responds to the acronym CSR, and the mayor of the local PP, Pedro Acevedo. It is what is known as 'revenge porn' (pornovenganza). Both went unpunished: at that time the Penal Code established that, for it to have been a crime, there had to have been theft or illegal appropriation of the data, and Hormigos had sent said video voluntarily when she was the soccer player's partner. As a result of this case, the Government of Mariano Rajoy promised a legal change and the Penal Code was modified, which now counts the unauthorized dissemination of intimate images or recordings as a crime.

Article 197 includes a prison sentence of three months to one year for anyone who “disseminates, reveals or transfers images or audiovisual recordings to third parties without the permission of the affected person; that he has obtained with her consent in a home or in any other place away from the eyes of others when the disclosure of the video or photos seriously undermines the privacy of that person ». The penalty is greater if the crime is committed by the spouse or partner of the victim; if she is a minor, she has a disability or there is a lucrative purpose. Thus, if we receive a sexual video or one that affects the privacy of the person who appears in it, it is better not to spread it.

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What about the screenshots of a conversation that are sent to another person or WhatsApp group? The lawyer is categorical: «Under no circumstances can WhatsApp screenshots be captured or broadcast in which you are not a participant or part of the conversation, group, etc.».

Sometimes the conversations in the messaging application get too loud and are reportable, like any other behavior that we find in the offline world. The difference is that in this case there is a record: insults, threats, attacks on the honor or privacy of a person... . In case of having received threats, it even gives more credibility that they have occurred online, since "there is proof of the threat produced, which is difficult when it is produced verbally, anonymously, etc.", says Campanillas.

A situation that we have all experienced is the spread of a hoax through the messaging application: the claim that some supermarket chains sell meat contaminated by listeriosis; the classic 'Whatsapp is going to have a premium version'; the videos that infect our phone with a virus; alerts of an imminent attack… There are all kinds.

The Internet Security Office created by the National Cybersecurity Institute of Spain (Incibe) explains that these messages have in common that they refer to an imminent situation -such as meat contaminated by listeriosis- and that others are alarmist and normally timeless -and contain phrases such as “Very important and urgent”-. Among the ways to detect it, the Office points out that they usually contain misspellings, include scarce, biased data and without any reference source, the photographs are taken from Google, they are signed with name, surnames and job titles and they always request to spread the message.

Before forwarding a message received with these characteristics, it is advisable to consult the parties involved (the commercial chain accused in the meatloaf hoax published a statement denying it); check the information with trusted sources (police, ertzaintza) or look for related news and opinions of other users with search engines. Forwarding these hoaxes not only contributes to spreading false information but can also be a crime. Campanillas says: «It will depend on the hoax that is being spread: it can affect people and then, as we have mentioned, undermine their right to honor. There are also hoaxes that incite hate crimes or put the population at risk by generating disorders, security alerts... Of course, what can start as nonsense or a joke can get out of hand and find us with a serious problem ».

However, it is not so easy for a judge to accept a WhatsApp conversation as evidence, and before admitting it, the court will ask an expert to prove its veracity using the receiving and sender mobile to verify that the conversation has not been manipulated. Remember that WhatsApp does not store messages on its servers, but rather they are sent encrypted before being deleted from the cloud.