For the Platform in Defence of Free Expression (PDLI), 2017 was a very bad year for freedom of expression, in particular due to the terrorism convictions of individuals who have no links to violent activity and who were instead charged on the basis of opinions expressed on social networks or for their artistic expression in poems or songs.
2017 saw the first Twitter user in Spain head to prison for writing an opinion on social media. Also sentenced to jail were the leader of the band Def con Dos, César Strawberry; the Twitter user Cassandra; the rapper Valtonyc; and the collective La Insurgencia.
“It is hard to find in Spain’s recent democratic history a similar precedent for the degree of repression against free expression that we saw in 2017: people have been sent to jail for songs and tweets. We had forgotten this and it happened in the middle of Europe in the 21st century. The fact that we are taking so long to process this development is very serious,” PDLI President Virginia Pérez Alonso said.
Due to the flood of legal cases against Twitter users and artists in Spain’s Audiencia Nacional – a special court dedicated to hearing terrorism and drug-smuggling cases – PDLI has branded 2017 “the year of crimes of opinion”.
And it’s not just because of the convictions for alleged glorification of terrorism: in February prosecutors in Las Palmas opened proceedings against the drag artist Drag Sethlas for possible offence to religion – precisely in the same year in which a United Nations special rapporteur called for the repeal of all anti-blasphemy laws still in force around the world.
Furthermore, in 2017 the police continued to fine journalists despite an opinion from Spain’s national human rights ombudswoman, prompted by a complaint from PDLI, that the sanctions do not conform to constitutional requirements.
Meanwhile, in Spain’s congress, the repeal of the “gag law” has stalled. Lawmakers are currently debating two distinct bills (from the Spanish Socialist Party [PSOE] and the Basque National Party [PNV]) that threaten to “change everything so that everything stays the same”.
Positive news
Out of the year’s positive news, PDLI highlights the reform of Spain’s public broadcaster, RTVE, to restore the independence of its president; the ruling of Supreme Court Judge Luciano Varela clarifying the criteria on when an opinion expressed in social media can be considered a crime; the decision of the European Parliament calling on states to regulate the protection of whistleblowers; and Spain’s rejection of extradition requests from Turkish President Erdoğan against two Turkish journalists following an intense campaign by PDLI.
PDLI’s work also had an impact on the withdrawal by the Madrid regional government of a bill on “Equal treatment and protection against acts of incitement to hate, discrimination and intolerance”, which PDLI considered a “judicial aberration” for proposing to regulate free expression through administrative means and without judicial oversight. The bill foresaw fines of up to 45,000 euros for messages on social media.
The Podemos party also revised its bill “against discrimination based on sexual orientation” to eliminate parts of the text that harmed free expression, as PDLI previously reported.
In May, PDLI received the free expression award given by the Unió de Periodistes; PDLI President Virginia Pérez Alonso and Ignacio Escolar – editor of Eldiario.es, a founding media outlet of PDLI – were nominated for the José Couso awards and PDLI’s legal advisers, Carlos Sánchez Almeida and David Bravo, were nominated for the awards given by the “Hay Derecho” foundation for their defence of freedoms. The PDLI also attended an international conference in Doha in which it spoke out against the decline of freedom of expression around the world.
2017 also saw public demand for, and the consensus of media, journalists and organisations in support of, responsible journalism. The principles on responsible journalism published by PDLI in September 2017 and relaunched in October amid the conflict in Catalonia have been signed by more than 200 media outlets and journalists, including 20 Minutos, eldiario.es, Público, Voz Pópuli, Civio, the Federation of Journalist Unions (FeSP), the RTVE News Council, the Professional Association of Galician Journalists, the Association of Communication Users and the National Association of Photojournalists in the Press and Television.
10 Things to Know:
1. Twitter users and singers head to prison
“Prosecutors are seeking to jail me for 2 years and 6 months plus three years of supervised release for Carrero Blanco jokes. That’s it, jokes about a dictator.” 2017 began, with regards to free expression, with this tweet from the young Murcian woman Cassandra Vera on Jan. 10.
“From a reading of the impugned tweets it can be concluded that there was no crime,” PDLI’s legal director, Carlos Sánchez Almeida, stated at the time. However, the Audiencia Nacional eventually sentenced Cassandra to one year in prison and a seven-year ban on public-sector employment.
Also in January, the Supreme Court published its ruling sentencing César Strawberry to one year in jail.
“It sets a serious precedent regarding the protection of free expression in Spain,” Joan Barata, PDLI’s international law expert, concluded of the Strawberry ruling.
The first case in which courts applied the “Strawberry doctrine” was that of rapper Valtonyc, who was sentenced to three-and-a-half years behind bars in February 2017 for the content of his songs.
The last conviction of the year for a crime of opinion was for the hip-hop collective La Insurgencia: its 12 members were sentenced to two years and one day in prison, a fine of 4,800 euros and a nine-year ban on public-sector employment, on the basis of an “abstract risk” of new attacks. One judge, Ángela Murillo, dissented from the ruling.
Record number of cases in the Audiencia Nacional
Last month, the Audiencia Nacional was the subject of alarm due to a record number of cases involving “glorification” of terrorism on social media. In order to avoid stiffer penalties, four of the defendants reached an agreement with prosecutors and accepted sentences of two years in prison and an eight-year ban on public-sector employment.
A Spanish lawyer who did not accept the agreement, Arkaitz Terrón, said during the proceedings that “police investigations had been opened against an account with some 22 followers, involving tweets some four years old”. Terrón also stated that there was a lack of clarity regarding the criteria that experts used to target specific accounts for investigation given the volume of content on the web.
On Saturday, Nov. 4, 2017, a Spanish man named Alfredo Remírez entered prison over comments he made on social media. Remírez was the first of several Twitter users detained as part of the so-called “operaciones arañas” to serve a jail sentence. The “operaciones arañas” (literally: spider operations) refer to a string of detentions that the PDLI considers highly irregular, given that they were the result of a police fishing expedition in which investigators trawled through social media – an unacceptable approach in a democratic society.
The number of court cases related to “glorification of terrorism” has actually increased since the end of terrorist activity in Spain. Since the end of ETA and since the PP’s entry into government, the figure has increased fivefold. In 2011, the year in which ETA permanently renounced armed activity, there were four convictions under Art. 578. The count rose from 10 in 2012 to 15 in 2013, before stabilising at 14 in 2014. It rose again in 2015 to 25. Additionally, since Jan. 1, 2016, the Audiencia Nacional (a special court dedicated to crimes related to terrorism and drug trafficking) has convicted at least 30 individuals of “glorifying” terrorism in relation to ETA and/or GRAPO on social media.
2. Fines under the ‘gag law’ are raking in cash
In 2017 the police continued to fine journalists under the “gag law”, which in June marked two years since its entry into force. Cases included that of Mikael Sáenz de Buruaga of the Basque radio broadcaster Hala Bedi, singled out by the Ertzaintza amid “punching and pushing” on May 18 for recording with his mobile phone during a police operation in the Errekaleor neighbourhood of Vitoria despite showing his press credentials. Spain’s human rights ombudsman initiated proceedings regarding this case following a complaint submitted by PDLI.
Other cases include: journalist Cristina Fallarás was fined 600 euros when she participated in a protest against the murders of journalists in Mexico; the Association of Galician Journalists reported police threats to journalists covering an eviction in Santiago de Compostela; and Raúl Solís was the first journalist in Seville fined under the “gag law” when he was cited while working to cover a protest against a bus belonging to ultra conservative group Hazte Oír.
According to the report “Proceedings related to the protection of public safety 2016” published in May 2017 by the Interior Ministry, since the Law on the Protection of Public Safety took effect a total of 285,919 fines have been imposed with a total amount of 131,470,206 euros.
Measured by number of sanctions, alleged infractions of Art. 37.4 of the law on “lack of respect and consideration” for members of public security forces tripled in 2016: that year, 19,497 fines were imposed on the basis of that article with a total sum of 3,006,761 euros, compared to “only” 3,130 fines during the second half of 2015.
There were 12,094 fines on the basis of the articles on “disobedience or resistance to authority”, “refusal to identify oneself” or the provision of “false or inexact information in the process of identification” (Art. 36.6 of the law) in 2016, one-third more than in 2015, when there were 4,311 fines during the six-month period in which the law was in force. That is to say, in 2016 the police fined an average of 33 persons per day under these provisions.
The grand sum of these fines amounts to 10,196,817 euros.
PDLI delivered to Congress a report on the law calling on all political parties to adopt measures to prevent police actions against journalists while the law remains on the books and/or while it is in the process of being repealed.
3. Congress rejects ‘gag law’, but repeal stalls
In September 2017, Congress approved two proposals from the PSOE and PNV parties to reform the Organic Law on the Protection of Public Security, known as the “gag law”, and rejected an alternative text presented by the EH Bildu party, which would have been more comprehensive in terms of guaranteeing rights.
Based on these two bills, the reform or repeal of the law finally began to get underway one year after Congress had approved calling on the government to repeal it.
PDLI, which considers the Law on Public Security an unnecessary legal instrument, believes that the current proposals are insufficient: among other drawbacks, they increase or maintain the possible forms of wrongdoing, continue to limit the rights of protest and assembly, and revive provisions from the previous public security law (known as the Ley Corcuera) that sanction “the provocation of reactions in the public that endanger citizen safety”.
The reforms presented by the SPOE and PNV parties foresee some positive changes: sanctions on the unauthorised use of images of public security forces would be repealed. This is one of the law’s most problematic aspects (both in terms of the unconstitutional nature of its application and because it clashes with other organic laws). However, it must be kept it mind that the majority of sanctions against free expression have been produced by other provisions in the law, such as those on “disobedience or resistance to authority” or “lack of respect or consideration”.
The bills would also repeal provisions that sanction serious disturbances to public safety related to protests in front of the Congress and the Senate and those related to disorder and hindrance on public roads.
However, the proposals do not include, for example, the reform of Art. 30.3, which considers the organiser of a protest to be “whoever through publications or declarations […] can be reasonably considered to be the leader of them”. This means, in practice, that persons can be sanctioned for a simple tweet or tweets with fines of up to 600,000 euros.
4. Detention of the alleged leaker in the Castellana Papers case, and a Pulitzer for the Panama Papers investigation
In February 2017 police detained the alleged leaker in the Castellana Papers case, an investigation that consisted in the first revelation of documents related to tax amnesty and that implicated at least 21 relevant individuals, among them members of the Borbón family and well-known businesspeople.
One month later, an appeals court in Luxembourg reduced the sentence given to Antoine Deltour, the whistleblower whose leaks triggered the #Luxleaks case, revealing a scheme of tax benefits involving more than 350 companies. The revelations led to a set of legal reforms and political action to improve oversight of the movement of capital in the European Union. However, despite this public benefit, the protection of whistleblowers remains an outstanding task.
PDLI, which defends the public’s right to information, believes that whistleblowers such as Deltour, Falciani or the alleged leakers of the Castellana Papers and the Pulitzer-Prize-winning Panama Papers project deserve, instead of being threatened with jail terms, to be supported by a legal framework that protects them.
5. The European parliament calls for the protection of whistleblowers, but Spain’s congress forgets them (for now)
On Oct. 24 the European Parliament approved a resolution “on legitimate measures to protect whistle-blowers acting in the public interest when disclosing the confidential information of companies and public bodies”.
The resolution calls on states and the Commission to establish mechanisms to support leakers as well as the press when it reports on leaks.
However, the bill proposed by the Ciudadanos party in Spain and that is now being considered by Congress contemplates a very narrow vision of who can be considered a whistleblower, restricting protection to very limited cases.
To correct this situation, in November PDLI presented in Congress a request to regulate the protection of whistleblowers to protect leakers from criminal reprisals or any other sanction when the leaked information is in the public interest.
Among the other changes that PDLI is calling for: that leakers be granted anonymity, that any person be eligible to have the status of whistleblower and not only persons linked to the public administration, that the scope of reporting of irregularities be extended to include the private sphere (businesses) and that the obtaining of protected information be able to include, with the necessary precautions, access to systems or devices.
6. Charges and threats from police bodies against media outlets and journalists
In November the magazine El Jueves was charged after a complaint from police unions based on satirical content that joked about riot police sent to Catalonia and possible cocaine consumption.
Several months earlier PDLI condemned repeated police harassment of the journalist Cristina Fallarás through official Twitter accounts in reaction to both Fallaras’s opinions in a talk show and to her journalistic reporting.
In March the news site Público reported on threats emanating from a police “political brigade” that Público had been investigating as part of the “little Nicolás” case and so-called “cloacas” or “shadowy” state activity, including an attempt to detain Público journalist Patricia López.
In June PDLI asked the Ministry of Interior to cease police pressure against journalists. No response has been received as of yet.
7. Turkish journalists
In August authorities in Barcelona detained the Swedish-Turkish writer and journalist Hamza Yalçin based on an international warrant issued by Turkey for “insulting the president of Turkey in a magazine article”.
A few weeks later, the same thing occurred in Granada with the German journalist of Turkish origin Doğan Akhanlı.
Following an intense campaign by PDLI (including the presentation of a detailed report to the state prosecutor describing human rights violations in Turkey and the presentation of a petition in Congress) and criticism from media and journalists, Akhanlı and Yalçin were finally freed and Spain denied both extradition requests.
8. The conflict in Catalonia
In September PDLI set in motion an observatory to record and give visibility to possible violations of fundamental rights in relation to events in Catalonia.
Among other incidents, the observatory recorded the following: a prohibition on actions related to the right to decide; the closure of web sites; attacks on journalists; complaints about the coverage of the public broadcasters TVE and TV3 and police violence against citizens on Oct. 1.
Additionally, PDLI warned of the impact on fundamental rights of the filing of sedition charges carrying possible prison time for the leaders of ANC and Omnium.
9. Unequal distribution of public advertising
In 2017 public administrative bodies continued to use public advertising as a prize or punishment to try to control the press.
The following are some of the data that we obtained in 2017: The Spanish tax agency showed favour to the website of Alfonso Rojo with money from public advertising; the newspaper La Razón came away with 60 percent of the advertisements in the Madrid Metro from the governments of Aguirre and González; a total of 1.88 million euros were provided by the water supply company Isabel II to La Razón over 10 years.
Meanwhile, eight ministries have gone to court to stop their having to reveal how much they distribute to media in public advertising.
10. Hoaxes, fake news and the threat of political interference against free expression
“Fake news” both opened and closed the year 2017.
If at the beginning of 2017 the focus of journalistic debate was the impact of the U.S. elections won by Trump (PDLI anticipated this debate in organising a journalistic conference on “fake news”), the past few months have brought to the forefront controversies related to the usage of the term “fake news” as a tool for political control of the media, such as those prompted by the mixed parliamentary commission on national security, representatives of the Popular Party in Congress and the Spanish government itself.
In the face of the threat of political interference, on Dec. 13, 2017, PDLI together with the Association of Publishers of Periodicals (AEEPP), the Federation of Journalist Unions (FeSP), the Association of Investigative Journalists (API), Fíltrala/Associated Whistleblowing Press, and the media houses Público, Eldiario.es, Vozpópuli, Civio, Xataka, and Maldito Bulo/Maldita.es launched the manifesto “In defence of freedom of expression” to state their rejection and opposition to “attempts of political control over journalistic work produced through any medium, including the Internet, with the excuse of the threat of ‘fake news’”.
This post is a translation of an article written by the Platform for the Defence of Free Expression (PDLI). It is being distributed in English as part of the International Press Institute (IPI)’s coverage of press freedom developments in Spain, supported by the European Commission.
Opinions expressed in this article are those of the author and may not necessarily reflect the views of the International Press Institute (IPI).
