All questions

Free speech and media freedom

i Protected forms of expression

Article 20 of the Constitution lays down the different rights and forms of freedom of expression, and the general limits for the exercise of this freedom (see Section II).

In practice, the courts have had to determine the extent of this freedom of expression and resolve conflicts between this fundamental right and other constitutional rights, which are also to be protected. The jurisprudence enacted by the Constitutional Court has defined a system to establish on a case-by-case basis the due balance or weighting of the constitutionally recognised freedom of expression against a conflicting right (usually the right to the protection of honour and privacy). As a general rule, the rights to free speech and media freedom tend to be asserted over these other constitutional rights, and even more so in those cases involving persons who hold a public position or who acquire celebrity status or are otherwise in the public eye.

Commerce- and marketing-related speech and language are permitted under Spanish law, provided that other relevant provisions (such as those on consumer protection, advertising or unfair competition) are respected. In any case, misleading commercial language is prohibited. In line with this, restrictions on the promotion of certain products (such as alcohol and tobacco) must be observed, as well as advertising aimed at minors and other vulnerable groups. Companies are thus entitled to promote their products and services using this kind of commercial language within the aforementioned limits.

Hate speech can be criminally prosecuted in Spain, provided that the requirements of Article 510 of the Criminal Code are met. The public prosecutor's office has a specialised delegation for the prosecution of hate crimes, including hate speech. According to the most recent report published by the Spanish Public Prosecution Service, most crimes related to hate speech in 2020 were committed through the internet (45 per cent), social media (22.8 per cent) and telephone or telecommunications systems (14.3 per cent). As an example, the Spanish Supreme Court in June 2020 confirmed the position already established in recent years that hate speech in social networks does not find protection in freedom of expression. In the case initiated against Spanish rap singer Pablo Hasel, the Supreme Court dismissed an appeal against a judgment handed down by Spanish special court the National Court convicting the singer for the crimes of exaltation of terrorism, with aggravating circumstances of recidivism, insult and slander against the Crown and against institutions of the state, and use of the image of the king. The singer was accused of including in his profile on social networks comments in the form of tweets that included videos inciting violence – comments considered to glorify terrorism and humiliate the Crown and other state institutions, such as Spanish police bodies. In this case, the tweets were not considered susceptible to being interpreted as a product of critical intentionality in the political and social field: they were not about publicising criticism, but rather were merely insulting and about causing offence. In this context, the Supreme Court held that freedom of expression and opinion did not extend to criminal acts included in Article 578 of the Criminal Code and, given the list of proven facts set out in the case at hand, it decided to maintain the ruling issued by the prior instance court.

ii Newsgathering

The right to communicate freely and to receive truthful information is recognised in Article 20 of the Constitution and, on this basis, media operators in Spain enjoy fair freedom of action in the development of their work activities in providing information, subject to the principles of plurality, transparency, free competition and freedom to provide services. This information must be of public or general interest, but at the same time structural elements of the state such as public order and national defence must be safeguarded and respected, as must other rights (such as the right to the protection of honour and privacy) to the extent appropriate. In addition, journalists must observe a certain duty of diligence regarding the ways in which information is obtained and sources verified.

An interesting case that involves the extent and limits of the right to information, and which is still pending in the courts, concerns a dispute between the Spanish football league and radio broadcasters. At the beginning of the dispute, the broadcasters claimed that they were entitled to enter football stadiums and broadcast matches using the clubs' facilities for this purpose on the basis of the right to information, whereas the league objected that:

  1. the broadcasters' right to information does not prevail over the league's right to property and freedom of entrepreneurship (also recognised in the Constitution);
  2. the exercise of the broadcasters' rights is not unlimited; and
  3. ultimately, the radio rights for football competitions could be marketed.

To resolve this dispute, the government amended the General Audiovisual Communication Law and established that radio broadcasters are entitled to enter stadiums to broadcast sport competitions live, entirely and for free except for a small amount of compensation to be paid to the sports event organisers to cover the direct costs incurred from the broadcasters' exercise of this right. This dispute is being dealt with by the Supreme Court, which admitted a claim from the Spanish football league to file a request to the Spanish Constitutional Court for a preliminary ruling on the potential unconstitutionality of the amended Law. On 20 October 2018, the Constitutional Court admitted the question of constitutionality, but it has yet to issue its decision on the matter.

Also of relevance in this context, Article 7 of Organic Law No. 1/1982 defines 'illegitimate intrusions' in the sphere of privacy, which is to be respected in newsgathering and publishing; however, Article 7 also includes a list of cases that are generally not considered to be intrusions of this kind.

Article 18.2 of the Constitution guarantees the inviolability of a personal domicile and restricts access to it subject to the owner or legitimate tenant's consent, unless a court orders otherwise. In addition, the Criminal Code punishes entry into a property without due permission, provided that the prerequisites of Article 202 et seq. of the Code are met.

Secrecy of communications is also constitutionally guaranteed, as stipulated in Article 18.3 of the Constitution, with particular emphasis on post and telephone communications, and subject to court decisions. The disclosure of secrets can also be considered a criminal offence in Spain, in the terms set out in Article 197 et seq. of the Criminal Code.

iii Freedom of access to government information

Article 105 of the Constitution recognises the right of citizens to access and know of administrative files and records as long as this does not violate the defence and security of the state, the privacy of persons and prosecution in criminal investigations. This general right is also extended to the media.

Under Law No. 19/2013 of 9 December 2013 on transparency, access to public information and compliance rules on the right of access to public information, the latter right does not have any temporal limitation and can be also enforced in relation to facts and issues that took place before the entry into force of the Law. Article 14 of Law No. 19/2013 establishes that the right of access can be limited if, as a result of access, damage can be caused to:

  1. national security or defence;
  2. external relationships;
  3. public security;
  4. criminal, administrative or disciplinary prosecution files;
  5. due process;
  6. administrative and inspection control;
  7. economic and commercial interests;
  8. economic and monetary policies;
  9. professional secrecy or intellectual property (IP);
  10. confidentiality or secrecy guarantees in decision-making processes;
  11. the environment; or
  12. data privacy.

The application of these limits must be justified and proportionate and must take into account the circumstances of each case, especially the existence of a public or private interest justifying access.

The exercise of this right of access and the procedure to be followed is provided for in Article 17 et seq. of Law No. 19/2013. According to records published in the press since the enactment of Law No. 19/2013, up to 120 court proceedings have been opened with regard to the government and public administration's refusal to give access to information. These disputes relate to very different issues, such as the disclosure of costs relating to the national TV channel (managers' salaries and costs of certain productions or the acquisition of rights, etc.) or the disclosure of the President's travel expenses.

iv Protection of sources

The protection of sources is enshrined within the professional secrecy provided for in Article 20 of the Constitution. In addition, journalists' codes of conduct also stipulate the protection of sources as a duty that can only be infringed in very limited cases (for instance, when it appears clear that a source has deliberately faked information or when disclosing a source is deemed to be the only way to prevent serious or imminent harm to persons). The basis for this protection is precisely the general interest and the right to information, as well as the need to preserve the discloser's identity to preclude further future disclosures not being made for fear of the possible consequences.

As regards these protections, in December 2018, the news agency Europa Press and the Spanish newspaper Diario de Mallorca filed a criminal complaint against a judge for having ordered the police to enter a newsroom to seize the mobile phones, computers and documentation of certain journalists to determine the origin of certain information that they had published. The judge, who faced a possible 42-year disqualification, was exonerated by the Supreme Court of Justice of Baleares of the crimes of prevarication, illegal interception of communications and violation of professional secrecy, among other things, despite the Supreme Court finding it proven that the judge's resolutions had made 'no reference to the right of journalists to professional secrecy'.

v Private action against publication

The Spanish legal system foresees several ways of acting against undue or illegitimate publications of either a civil or a criminal nature.

In the civil field, persons can pursue the actions set out in Organic Law No. 1/1982 to protect themselves against illegitimate infringements of their honour, privacy and own image arising from a publication. They can use ordinary proceedings before the civil courts, the special procedure referred to in Article 53.2 of the Constitution or, where necessary, a writ of amparo before the Constitutional Court. The relief that may be sought by a claimant comprises any and all measures necessary to stop an illegitimate intrusion and to restore the claimant's full rights, as well as those measures tending to prevent or impede future intrusions. Damage will be presumed if the illegitimate intrusion is formally recognised. Precautionary measures (including the provisional seizure of a publication) can also be requested. A recent case involving the famous novel Fariña is proof of this. The novel was seized by a court, which granted the provisional measure requested by a town mayor, one of the book's real-life characters, who claimed that the novel infringed his right to the protection of his honour. However, this court order was later set aside by the High Court.

Again within the civil jurisdiction, it is possible to exercise the right to rectification in accordance with Organic Law No. 2/1984. A person is entitled to rectification of media disclosure of facts that he or she considers inexact and that may cause him or her damage. This right is to be exercised in writing and addressed to the director of the publication within seven days of the date of publication. If the rectification does not take place within three days of receipt of this written communication, the aggrieved person can start civil proceedings aimed at achieving a judicial decision ordering the publication to rectify the incorrect information.

In the area of criminal law, the Criminal Code penalises certain conduct relating to publication. The Code provides for the offences of insult and defamation and an aggrieved party can seek redress for these through the law if it considers all the elements of an offence to be present.2 The offences of disclosure of secrets3 or domicile violation may also be deemed to have been committed at the newsgathering stage, if the relevant prerequisites in the Criminal Code are met. A publication may also be deemed to constitute or contribute to a hate crime.

Other actions may be taken on the basis of other legal provisions if a breach of any of these takes place in a publication (in relation to data protection, advertising, unfair competition, etc.); however, the aforementioned actions are the most commonly used.

vi Government action against publication

This is feasible in Spain if the relevant circumstances and conditions allow. In fact, Article 20 of the Constitution enables the seizure of publications if a court so declares. However, the power of seizure must be exercised with utmost caution and in respect of other rights. There are not a great number of cases in recent jurisprudence in which a seizure of this kind has been granted at the request of the government. The public prosecutor's offices are entitled to request seizure of a publication through the courts, but it is for the competent judge to decide.

One of the leading cases of this kind in Spain was the publication in the satirical magazine El Jueves of a comic strip featuring images of the current king and queen of Spain, which the public prosecutor's office held to be defamatory. The publication's seizure was requested and finally agreed by a judge. The prosecutor's initiative and the judge's decision were not exempt from criticism, reigniting extensive debate on the coexistence of freedom of expression and the right to the protection of honour, and on the limits of satirical jokes and publications.