The person who created a fake Facebook profile using the photo of their ex-partner may be subject to various penalties or sanctions, depending on the exact legal framework of their conduct and the circumstances of the case. Let's detail the possible legal consequences for each type of infraction.
Portuguese Penal Code
Computer Fraud (Article 221)
Penalty: Imprisonment of up to 3 years or fine.
Condition: It is necessary to prove the intention to cause harm or obtain an illegitimate benefit.
Portuguese Civil Code
Right to Image (Article 79) and Personality Rights (Article 70)
Civil Sanctions: Compensation for moral and material damages caused by the unauthorized use of the image and by offense to the personality. The amount of compensation is determined by the court based on the extent of the damages suffered.
General Data Protection Regulation (GDPR)
GDPR Violation
Administrative Sanctions: Administrative fines that can reach up to 20 million euros or 4% of the company's global annual turnover (if applicable to a business entity), whichever is greater.
Condition: This sanction would be applied by the National Data Protection Commission (CNPD) in Portugal, after investigation.
Constitution of the Portuguese Republic
Right to Personal Identity (Article 26)
Constitutional Protection: Although the Constitution does not directly prescribe penalties, violations of constitutional rights can provide a basis for civil and criminal actions.
Detailed Analysis
The specific sanction or penalty will depend on how the court assesses the following points:
Intention and consequences: If there is evidence that the creation of the fake profile was intended to harm the victim or obtain an illegitimate benefit.
Extent of damages: The court will consider the emotional, reputational and any other type of harm suffered by the victim.
Recidivism: If the perpetrator has a history of similar behavior, this may increase the penalty.
Legal Procedure
Criminal complaint: The victim must file a criminal complaint with the police authorities or the Public Prosecutor's Office.
Civil Action: In parallel or independently of the criminal complaint, the victim may file a civil action to demand compensation for damages.
Conclusion
Considering all possibilities, the penalties or sanctions that the person may face are:
Imprisonment of up to 3 years or fine for computer fraud or identity theft.
Compensation for moral and material damages in a civil action.
Significant administrative fines if the violation falls under the GDPR.
The combination of criminal, civil and administrative sanctions aims not only to punish unlawful behavior, but also to compensate the victim and prevent future offenses.
Work prepared by Aldair Teta
Summer Intern at JLAdvogadoslawyers.RL
07/08/2024
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