An extract from The Media and Entertainment Law Review, Edition 2

Free speech and media freedom

i Protected forms of expression

Article 20 of the Constitution lays down the different rights or forms with regard to freedom of expression, and the general limits for the exercise of this freedom. See Section II.

It has been for the courts to determine the extension of this freedom of expression and to resolve the collision of this fundamental right with other constitutional rights that are also worth protecting. The jurisprudence enacted by the Spanish Constitutional Court has defined a system in which a due balance or weight between the constitutionally recognised freedom of expression and another conflicted right (normally the right to honour and privacy) shall be performed on a case-by-case basis. As a general rule, the rights to free speech and media freedom tend to hold a preferred position with respect to these other constitutional rights, and even more in those cases that involve persons who hold a public position, or who develop a profession of notoriety or are subject to public exposure.

Commercial speech is 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 speech is prohibited. In line with this, restrictions on the promotion of some products (such as alcohol and tobacco) shall 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 elements foreseen in Article 510 of the Criminal Code are met. The Spanish public prosecutor's office has a special delegation specialised in the prosecution of hate crimes, including hate speech. According to the last published report (dated 2019) of the public prosecutor's office, in 2019, crimes related to hate speech increased by 6.8 per cent compared to 2018, with most of these being committed through the internet (54.9 per cent), social media (17.2 per cent) and telephone or telecommunication systems (16.2 per cent). As an example, the Spanish Supreme Court has recently confirmed a position that had already been established in recent years: the hate speech in social networks does not find protection in freedom of expression. In the case initiated against the Spanish rap singer Pablo Hasel, the Supreme Court dismissed an appeal filed against a judgment handed down by the National Court that condemned the singer for the crimes of exaltation of terrorism, with the aggravating circumstances of recidivism, insult and slander against the Crown and use of the image of the King, and insult and slander against institutions of the state. The singer was accused of including comments in the form of tweets in his profile on social networks that included videos inciting violence – comments considered to be glorifying terrorism and humiliating for the crown and other state institutions such as Spanish police bodies. In this case, the tweets were considered as not susceptible to being interpreted as a product of critical intentionality in the political and social field: they were not about exposing criticism, but were rather merely insulting and about causing offence. In such a state of affairs, the Supreme Court considered that freedom of expression and opinion are not covered by conducts included in the criminal offence of Article 578 Criminal Code and, with a list of proven facts such as those set forth in the case at hand, it decided to maintain the ruling issued in the prior instance.

ii Newsgathering

The right to freely communicate and to receive truthful information is recognised in the Constitution (Article 20), and on this basis, media operators in Spain enjoy fair freedom of action in the development of their information-giving tasks, which is guided by the principles of plurality, transparency, free competition and freedom to provide services. This information shall be of public or general interest, and structural elements of the state, such as the safeguarding of public order or national defence, must be respected, as well as other rights, such as honour and privacy, to the extent appropriate. In addition, there is a certain duty of diligence on journalists regarding how to obtain information and verify sources.

An interesting case that involves the extent and limits of the right to information, and that is still pending before the courts, relates a conflict between the Spanish football league and radio broadcasters. At the beginning of the dispute, the broadcasters claimed that they were entitled to enter into football stadiums and to broadcast matches using the clubs' facilities for such purpose, on the basis of the right to information, while the league sustained that:

  1. this right cannot overcome the league's right to property and freedom of entrepreneurship (also recognised in the Constitution);
  2. the exercise of the broadcasters rights' shall not be unlimited; and
  3. ultimately, the radio rights of football competitions could be marketed.

To bring this dispute to an end, the government amended Act No. 7/2010 on general audiovisual communication and established that radio broadcasters were entitled to enter into stadiums to broadcast sport competitions live, entirely and for free, by paying a small amount of compensation to cover the sport event organisers' direct costs resulting from the exercise of such 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 this Act. On 20 October 2018, the Constitutional Court admitted the question of unconstitutionally, and is yet to decide whether this legal provision is constitutional.

On the other hand, it shall be taken into consideration that Organic Act No. 1/1982 defines 'illegitimate intrusions' in the sphere of privacy (Article 7), which shall be respected in newsgathering and publication, and also includes a list of cases that are generally not considered as such kind of intrusion on a general basis.

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 foreseen 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 Act No. 19/2013 of 9 December 2013 on transparency, access to public information and compliance rules on the right of access to public information, this right of access to information does not have any temporary limitation and can be also enforced regarding facts and issues that took place before the entry into force of Act No. 19/2013. Article 14 of the Act No. 19/2013 establishes that the right of access can be limited if 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 the access.

The exercise of this right of access and the procedure to be followed is foreseen in Article 17 et seq. of Act No. 19/2013. In accordance with the records that have been published in the press, following the enactment of Act No. 19/2013, up to 120 court proceedings have been opened with regard to the government and 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 to be embodied within the professional secrecy foreseen in Article 20 of the Constitution. In addition, journalists' conduct codes also rule on 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 the sole way to prevent serious or imminent harm on 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 avoid that, in the future, further disclosures are not made for fear of such disclosure's consequences.

In this regard, it is worth mentioning that, in December 2018, the news agency Europa Press and the Spanish newspaper Diario de Mallorca filed a criminal complaint against a judge who faced a 42-year disqualification for having ordered the police to enter into the newsroom to seize the mobile phones, computers and some documentation of certain journalists, in order to determine the origin of certain information that they had published. The Supreme Court of Justice of Baleares exonerated the judge from the crimes of prevarication, illegal interception of communications and violation of professional secrecy, among other things, despite considering it proven that in its resolutions, the judge 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, either of a civil or criminal nature.

In the civil field, persons can exercise the actions arising out of Organic Act No. 1/1982 to protect themselves against illegitimate intrusions into their honour, privacy and self-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 that are necessary to cease 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 accredited. 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 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 Act No. 2/1984. A person is entitled to receive rectification of information disclosed in media of facts that he or she considers inexact and that may cause him or her damage. This right is to be exercised in writing before 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 the aforementioned communication, the aggrieved person can start civil proceedings aimed at achieving a judicial decision ordering the publication to rectify.

Concerning criminal law, the Criminal Code penalises some conduct relating to a publication. The offences of insult and defamation are foreseen in the Code and can be exercised by an aggrieved party that considers that all the elements of an offence concur (see Articles 205 to 216 of the Criminal Code). The offences of disclosure of secrets (Article 197 et seq. of the Criminal Code) or domicile violation can also be committed at the newsgathering stage, provided that the relevant prerequisites foreseen in the Criminal Code are met. A hate crime may also arise out of the publication.

Other actions may be exercised on the basis of other legal provisions if a breach of any of these takes place in a publication (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 seizure shall be exercised with utmost caution and in respect of other rights. There is not a vast number of cases in recent jurisprudence in which a seizure of this kind at the request of the government has been granted. The public prosecutor's office is entitled to request the seizure of a publication to the courts, but it is for the competent judge to decide.

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