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Can parents access their children's phones?

Criminal Law
Can parents access their children's phones?

Minor children have the right to privacy with third parties and with their parents. In recent jurisprudence, the consent of the minor child is established to reveal the messages of their social networks.

In this sense, in a ruling of the Constitutional Court dated July 15, 1999, it is established that "the privacy to be protected is that of the minor, which must be safeguarded, not only with respect to third parties, but also with respect to their own family members, since not even the parental authority that can be exercised over the minor attributes the right to whoever is the holder of the provision on the privacy of that minor; and, in any case, the exercise of that parental authority should be for his protection. ”

Therefore, the general rule is that the minor must consent to their parents being able to access their electronic devices and / or social networks. But this admits exceptions in which parents can access the content of these social platforms without the necessary authorization from their minor children.

The current jurisprudence validates the evidence obtained by the father or mother who accessed the child's computer, despite not having their authorization, for the following reasons:

  • The parents already knew the password of the minor's social network, because their son previously told them. In this case, the guarantee of art. 11.1 LOPJ, since the violation of privacy comes from an authorized person.
  • If access is by parents, both are holders of parental authority over the minor child. If, given clear indications that a criminal activity is taking place, the parents access the messages of their son, the parental obligations cannot be penalized to control the presumed evidence that leads to the criminal route.
  • If the minor child has not expressly refused to interfere, this factor gives us the presumption of consent, if the minor has also emphasized with the statements that the content of the communications may have been reproduced.
  • We must differentiate access to messages from behavior that serves to disseminate content. Therefore, if a parent is in possession of the password, that parent is authorized to access.

In conclusion, so that both parents can access with complete guarantee and tranquility the messages and / or telematic devices of their minor children, it is necessary to have the password or consent to access. Otherwise, only parents who have indications that their minor child is being the victim or perpetrator of a crime could access.

Therefore, indiscriminate controls on the messages and devices of minor children cannot be justified, arguing that they have a "right" to be their parents or to be the owners of the telephone line and / or the Internet.

Contact us, and our lawyers specializing in criminal law will study your specific case. 

At Forcam Abogados we have offices in Barcelona, Madrid and Reus.