Can I record the police and can they force me to erase the images I have recorded of them?

In Spain, you can generally record police officers on public roads while they are performing their duties, as long as you do not interfere with their work or put anyone at risk. This is supported by judgments and a multitude of recent legal analyses (STC 72/2007 of April 16).

The issue of the legality of recording police officers in Spain is mainly regulated by the Organic Law 4/2015, on the protection of citizen security. This regulation established in its article 36.23 that it constituted a serious offense "the unauthorized useof images or personal or professional data of members of the Security Forces and Corps when such use could endanger the personal or family safety of the agents, that of the protected facilities or the success of an operation, with respect to the fundamental right to information".

This means that the mere lack of authorization is not enough to consider the capture or use of images unlawful; in order for the recording to be prohibited, the specific risks mentioned in the law must be present: endangering the personal or family safety of the agents, the protected facilities or the success of an operation.

Similarly, the last paragraph of the same article refers to the fact that the fundamental right to information must be respected. It is important to point out that the weighing between the right to information and the right to one's own image must be done on a case-by-case basis, taking into account the specific circumstances of each situation. Constitutional case law recognizes that the right to one's own image may yield to the right to information when the recording is made in public places and in the exercise of public functions, provided that the information is truthful and of public interest (STC 72/2007 of April 16).

Therefore, the conclusion is that a private individual can record a police action on the public road (or in his own home), even if he has not received authorization to do so. What cannot be done is further irregular use of data or images, an action that is defined as a serious infringement, for which a fine will be imposed as a sanction. (STC 1911/2020), so if you plan to publish or use the recording as evidence, better keep everything (video, time, witnesses).

Key points

• Recording is legal in public spaces and during public performances.
• Do not obstruct: if you approach, get in the way or impede the performance, you may be sanctioned or even arrested.
• You cannot be forced to delete the recording unless there is a court order or you are interfering with police work or committing an infraction; there is usually no legal basis to demand deletion. If you are asked to do so, write down your name/plate and leave a record.
• Disseminate the images: recording and saving is correct; disseminating may have limits (e.g. if it puts an officer at risk, reveals his personal data or affects minors). Uploading a video to networks in which officers are clearly identified in order to defame or discredit them may constitute an infringement of the Public Safety Law or the General Data Protection Regulation, which may result in an administrative fine, and in serious cases, it may even be a crime of disclosure of secrets (Art. 197 CP). Therefore, the dissemination of these images may be subject to limits if it affects the fundamental rights of the agents or the security of the operations.
• Special cases: recording inside private homes (other than our own), undercover agents, victims or minors has different restrictions; in this case the right to information yields to the right to privacy and will not normally be allowed.

What to do in practice

• It records remotely and openly (not hidden).
• Do not interfere or interfere between agents and the person being questioned.
• Identify the agent preventing you from recording (badge, number, unit) if you can, and note time/place.
• Make a copy of the recording as soon as possible (upload it to the cloud or send it to a contact).
• If you are asked to erase your cell phone or take it away, ask for a court order to do so; if you are forced to hand it over anyway, never hand over your password and ask for a receipt/document.
• If they threaten you or act irregularly or detain you, contact a lawyer and consider filing a complaint or administrative complaint.

José Soler Martín - Lawyer