2023-09-19 14:42:07
Several people on Monday in front of the Almendralejo National Police station, Badajoz. ROBERTO PALOMO
This Monday the scandal broke out in the municipality of Almendralejo. The photographs of twenty girls between 11 and 17 years old, manipulated with artificial intelligence so that they appeared naked, were circulating from cell phone to cell phone. The prosecutor’s office is already investigating.
Given this violation of the fundamental rights to honor and self-image of minors, the criminal route is not the only one that the parents of minors can use. They can also sue for damages caused before civil jurisdiction and there is another means of protection that is not usually so well known. At the same time as going to court, you can also report the commission of a data protection violation to the Spanish Data Protection Agency (AEPD). Of course, if criminal proceedings are opened, civil and administrative procedures would be suspended until the trial is resolved.
And the image of each of the girls – in this case their faces, since the naked bodies attributed to them in the photographs are created by artificial intelligence – is protected personal data, since through these You can easily identify the minors. Consequently, and in accordance with data protection regulations, it could be a serious infraction for disseminating photographs via WhatsApp of minors (a specially protected group), without their consent.
Urgent withdrawal
Precisely, the AEPD insists on the importance of reporting these types of events in the priority channel created by the agency for request the urgent removal of sexual or violent content published on the internet without consent of the people who appear in them. 70% of the cases reported in this way, according to the AEPD, refer to acts of digital violence against women and girls. In fact, in the specific case of Almendralejo, the AEPD has already contacted the city council to inform those affected and their families that they can use this means to stop the spread of the photographs.
In 2022, the AEPD carried out 51 emergency interventions to remove information, images, videos or audios that had been published on the Internet without permission and that showed sensitive ‒ sexual or violent ‒ content. According to agency sources, In 46 of those 51 cases, the published content was removed immediately..
Once the report is received, the corresponding service providers are required to remove the sensitive content immediately. “The removal of this content is a great help for the people affected and is one of the principles on which the agency’s social responsibility is based,” the AEPD highlights. Likewise, the urgent removal of sensitive content does not exclude the agency from being able to clarify the responsibilities that arise through a sanctioning procedure, if appropriate after evaluating the specific facts of each case.
In this sense, the fact that the dissemination of the images has been through a app messaging services such as WhatsApp can make it difficult to withdraw since, as pointed out Leandro NunezAudens partner and data protection expert, it is practically impossible to stop it if users do not collaborate.
Administrative violations
The images of the naked minors, in addition, have been manipulated, and therefore do not correspond to reality, which is why, in the opinion of Leandro Núñez, their dissemination could also fit as a breach of the obligation of accuracy when processing personal dataincluded in article 5.1.d) of the General Data Protection Regulation).
These events are reminiscent of what happened in 2006 when the program Here is tomato, then broadcast on Telecinco, showed images in which the tennis player Anna Kournikova supposedly appeared naked. As indicated in the 2012 AEPD resolution, the images had been manipulated, making the tennis player’s two-piece swimsuit disappear, so that it appeared that she was naked. Finally, the procedure before the AEPD was archived because the infringement had expired, although Kournikova did obtain a favorable ruling in civil proceedings by which Telecinco was ordered to compensate her with 300.000 euros.
High penalties
In any case, these types of infractions are punished with administrative fines that can reach up to 20 million euros. The range of sanctions regarding data protection is wide, however, as Leandro Núñez points out, the AEPD has never sanctioned an individual with a fine of 20 million. For example, one of the highest fines imposed by the AEPD on a natural person was 10,000 euros in 2020 for sharing intimate photos and screenshots of a woman’s conversations on their WhatsApp status without her consent.
Furthermore, if the images were considered to have sexual content, taking into account that the manipulation consists of simulating that the girls are naked, their dissemination without the consent of the affected person could lead to prison sentences of three months to five years for the first to disclose them, or from one to three months for those who forward them to third parties after receiving them. This was stated by Mar España, director of the AEPD, recently regarding the case of a video of sexual content with a minor shared by Real Madrid youth players.
According to the latest information about what happened in Almendralejo, the National Police has identified several minors as alleged perpetrators of the montages. Regarding whether or not minors can be sanctioned for data protection violations, the AEPD points out that this is expressly provided for by the Organic Law on Comprehensive Protection of Children and Adolescents against Violence (LOPIVI), when the perpetrators of the offense are over 14 years of age. Therefore, if the offender is over 14 years old, but under 18, it will be the parents who will have to bear the fines imposed by the administration.
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