Wednesday, 3 December 2025, 14:48

The Supreme Court of Spain has upheld the case of a father who sued his wife for recording a phone call with his underage children and sending it to the WhatsApp group of their primary school class, which had 23 members. The court sentenced the mother to two and a half years in prison and a fine of 2,700 euros, finding that these minors were victims of the crime of disclosing a private conversation.

This is stated in the ruling coming from the criminal division of this court, whose spokesperson was Judge Ángel Hurtado. The ruling was in favour of the father, acknowledging that the children “were passive subjects” of the crime of revealing secrets, something that was not included in the ruling handed down by the court of first instance where this case was first heard.

The events occurred in April 2021, while the parents were in the process of separating. One evening, the father phoned his children and the mother recorded the conversation “without the consent of those involved”, as detailed by the court. That same night, she sent the recording to a group chat with the parents of one of her children’s classmates.

The father took the case to a lower court in the province of Cuenca, which sentenced the mother to one year’s imprisonment and a fine of 1,800 euros, in addition to covering the costs of the proceedings. This happened in 2022.

Subsequently, the father lodged an appeal with the provincial court of Cuenca, which upheld the lower court’s sentence and also ordered the woman to pay 500 euros in compensation to the plaintiff.

Dissatisfied with the decision, the man took his appeal to the Supreme Court. He insisted that the aggravating circumstance of the victims being underage children should be applied to the case, which would overturn the provincial court’s view that the victims were not the children, but the father.

In his appeal to the Supreme Court, the man alleged that the law had been applied inappropriately, resulting, in his view, in “a manifestly arbitrary, illogical or absurd sentence”.

The Supreme Court took the position that “neither the ruling from the lower court nor that of the court of appeal provided an explanation” as to why they did not apply the aggravating circumstance of the minors being victims of this crime.

It thus argued that the children “were passive subjects of said crime, insofar as their fundamental rights to privacy and the confidentiality of their communications were violated”.

Furthermore, the court added that the fact that the man did not file a complaint on behalf of his children should not be an obstacle to applying the aggravating circumstance to the woman, since “it was sufficient that he did so by reporting the criminal acts” that had affected the children.

“Obviously, when it comes to minors or persons with disabilities in need of special protection, who, due to their own circumstances, are not in a position to file a complaint as they cannot weigh up the conflicting interests themselves, the initiation of legal action must be carried out by the legal representative or the public prosecutor’s office”, explained the judges. In this case, the father was the minors’ legal representative.

Therefore, the Supreme Court ruled in favour of the father and sentenced the mother to two and a half years in prison and a fine of 2,700 euros for the crime of disclosing and revealing secrets, with the aggravating circumstance that the victims were minors.

The mother deleted the message

In its ruling, the Supreme Court notes that the lower court stated in the proven facts that the mother “mistakenly” sent and “immediately deleted” the message containing the recording of the conversation to the group chat.

For these judges, this fact “makes it difficult” to apply section 3 of article 197(3) of Spain’s penal code to the woman, which provides for penalties of up to five years in prison “if the disclosed data is disseminated” to third parties.

The Supreme Court understands that deleting the conversation does not preclude the dissemination of the information, but it is sufficient to cast doubt on whether the mother had “the intention of wanting to disseminate it” and, therefore, on this point, it did not rule in favour of the father.

The man also appealed against the “small amount” of compensation of 500 euros awarded by the provincial court of Cuenca.

The Supreme Court noted that it cannot rule on this matter because “only a lower court is responsible” for setting compensation. As such, this is not an issue that can be reviewed in an appeal, “unless it is considered disproportionate”, something that the court ruled out in this case.