Monitor Your Child’s Whatsapp?

The need that some people feel to control the acts of others is as old as the human being himself. This restlessness is usually motivated by the anxiety generated by the distrust in what that other person can do or not do, when it is considered that he must adjust to a certain behavior, and it is suspected that he is not going to do it. However, this behavior may have its origin in a healthy concern to protect loved ones or in the will to exercise an obsessive control sick, which requires a different response.

At present, this surveillance can be carried out through the use of technologies, especially mobile devices, which have become omnipresent in our lives, to the point of being the cause of some pathologies such as addiction to mobile phones, “phubbing” (abstracting from what happens around by being absorbed with the smatphone), nomophobia (panic to leave home without the phone), or simply the urgent need to consult the smartphone constantly, which, according to the latest studies, suffers more than a quarter of the Spanish population between eighteen and sixty-five years.

The result is that, nowadays, this tracking is frequently carried out through geo-location systems incorporated into mobile terminals (which is not harmful in itself, as it is very useful, for example, to detect the exact place where an accident has occurred, which can save lives; or to locate a missing person), which are used by some “spy” applications (Cell Tracker, AirDroid, etc.) that allow tracking the exact location of a mobile phone and, presumably, its owner or owner.

But that’s not all, because there are also applications that would allow you to see the activity of other WhatsApp contacts in order to have access to the conversations they have had with other people (Whatrack, ChatWatch, Wossip, WhatsappVoyeur, WhatDetective, etc.), although many of them don’t really fulfill this purpose and, in reality, it would be a scam, as would have been the case of “WhatsApp Spy”, whose creator ended up being arrested.

It is not strange that these technologies are used by people who are excessively jealous to control the movements of their partner or ex-partner without them knowing it, or to browse their conversations with other people.

These conducts, besides being extremely invasive and which, when discovered, generate anxiety and fear in the victim, who suddenly discovers that his movements have been controlled without his knowledge or consent; they suppose a crime of violation of his right to privacy and of discovery and revelation of secrets, sanctioned with prison sentences of one to four years and a fine of twelve to twenty-four months by article 197-1 of the penal code.

When this control is used to obsessively harass and/or intimidate the victim, to the point of restricting his private life or the possibility of carrying out his activity normally, it could constitute a stalking offence, punishable by imprisonment for three months to two years or a fine of six to twenty-four months.

Notwithstanding the foregoing, there are other non-consensual controls that may generate more understanding since other higher values are at stake. This would be the case of the one that parents can exercise on their minor children, since it would not be a question of doing an obsessive or intrusive follow-up, but it would obey the concern of the parents for the well-being of their offspring, fearful that something could happen to them when they leave the house or that they are involved in matters for which they are not prepared.

In this line would be applications that allow tracking the history of visits, downloads and monitoring of applications and social networks (Norton Family, Qustodio, etc.) or track messages, calls, location, applications, etc.. (Teen Safe, Kaspersky SafeKids, etc.).

That said, we must not lose sight of the fact that applications intended for use by minors are always in the spotlight due to the naivety they may have when accepting terms and conditions or giving their consent to be geo-localized.

In this sense, recently the Attorney General of the State of New Mexico (USA) has filed lawsuits in the Federal District Court of Northern California against several technology companies, including Google, Facebook and Twitter, for marketing apps aimed at children (Cleanup Fun, Fun Kid Racing, Baby Toilet Race, Candy Land Racing, etc.) that track the location and activity of underage users without their consent.

But does this parental control include the possibility for parents to access conversations their children have with others via email, social networks (Facebook, Instagram, Twitter, etc.) or messaging systems (Whatsapp, Telegram etc.)?

Whatsapp Monitoring as Parental Control Measure

Controlling the child’s Whatsapp does not constitute a crime, as it falls within the scope of the obligations implied by parental authority by virtue of the provisions of article 154 of the Civil Code.

This is the assumption that has analyzed the recent Order of the Provincial Court of Pontevedra of 25 October 2017 in relation to the complaint filed by the mother of a child under nine years, because the father accessed the mobile phone of the girl to read the conversations he had with his mother through WhatsApp.

The complainant maintained that this fact meant the commission of a crime of discovery of secrets typified by article 197 of the criminal code, while the father defended himself by invoking his right and obligation to exercise parental responsibility over his daughter.

The resolution concludes that the facts do not constitute a crime, since they fall within the scope of the obligations of parental authority by virtue of article 154 of the Civil Code, since the minor’s reduced age requires her parents to act in her interest, which, as far as this is concerned, is concrete in caring for the children, as well as educating them and providing them with a comprehensive education.

Under the provisions of that provision, this provision should be applied generally to all unemancipated minors, regardless of the fact that, if they are sufficiently mature, they must always be heard before decisions affecting them are taken.

In the specific case under trial, it was considered relevant that the review of WhatsApp’s conversations was carried out by the father in the presence of his daughter, for which reason he accessed her telephone with her consent, and reviewed with her certain conversations, which do not deserve to be classified as “secret”, “reserved” or “non-public” data, for the purposes of including them in the definition of the crime of revealing secrets, without there being any evidence that the father intended to discover the secrets or violate the privacy of the minor.

In application of the foregoing, parents have the right and obligation to be aware of their children’s use of technologies in which they may be particularly vulnerable due to their age and lack of maturity (which also includes the “WhatsApp”), in order to preserve their indemnity and protect them from possible threats they may suffer for this reason.