Introduction
Among the issues that concern freedom of expression activists in Spain are several changes to legislation, most specifically a new Public Security Law (Ley Orgánica de Protección de la Seguridad Ciudadana) (nicknamed “the gag law” – ley mordaza – by its critics) and changes to the Penal Code, both of which entered into force on July 1, 2015. Furthermore, reforms to the Criminal Procedure Code are currently being considered by the legislature.
This report does not contain a detailed analysis of the legal changes (as this was not part of the mission), but points out the concerns raised and the comments given on this by different interlocutors during the international expert mission.
Legal changes
The Public Security Law, among other things, makes the unauthorised use of images or personal data of public security officers punishable. This is very likely to have a limiting effect on media and restrict the important watch-dog role of a free media. The law also requires persons to show due respect to members of the security forces in the line of duty. This formulation is vague and open to different interpretations.
A number of amendments to the Penal Code have been carried out. The Code is old and in many cases the amendments are updates to modernise the code. Certain amendments, however, give cause for concern, as they could have a chilling effect on freedom of expression due to unclear formulations. One example is the prohibition of regularly visiting websites with terrorist content. It is not clear what would amount to “regularly visiting” and the meaning of “terrorist content” is also not clear. We were ensured by the defenders of the amendments (the Popular Party as well as to some extent the Socialist Party, who both are signatories to an anti-jihadist pact, which is a background to the legal amendments) that there is a need for a subjective as well as objective element for any activity to fall under the provisions, i.e. one must intend to commit acts of terrorism in order to be found guilty.. Provided this is properly applied by an independent judiciary, the application of the provisions may well be acceptable, but the vagueness can nevertheless have a chilling effect.
The amendments to the Criminal Procedure Code would, among other things, allow for the possibility to install so-called spyware and other means of electronic surveillance. The draft amendments to the Code have been changed during the drafting and legislative process. The possibility for surveillance without judicial approval, as initially proposed, has been reduced. The working group under the High Judicial Council that examines draft legislation (see below) suggested changing this and their suggestion was accepted. The amendments are still under consideration by the legislature. It is very important to avoid the temptation, which unfortunately is common in many countries, that, because it is so easy to use modern technologies for mass surveillance, such surveillance is undertaken without due regard for proportionality and necessity.
International standards
As concerns legal measures related in different ways to security concerns and the fight against terrorism, the situation for international experts is somewhat different than the situation related to advice related to e.g. public service broadcasting, broadcast regulation or access to information legislation. In those cases there exist best international practices as well as different well-established national systems that may be used as models. For various reasons there are fewer good models to use for security-related matters. There is no internationally binding or universally accepted definition of terrorism in international law. Most countries in the world struggle with the limits between acceptable and legitimate infringement of rights in order to ensure security. There are thus in this matter no ready-made international solutions to suggest. This does not mean that there are no best practices to point to. What is very important is that the requirements of necessity and proportionality of any restrictive measures be duly and transparently taken into consideration. Such requirements include that any measures that restrict rights and freedoms have a chance of being successful in combating the matters they are aimed at. The restrictions and their motivation should be as clear as possible.
The potential chilling effect of security related provisions if they are vague and admit the possibility of diverse interpretation must be kept in mind. It will take a while before jurisprudence develops and during this period, journalists, researchers and others who, for legitimate reasons, access websites must not feel afraid that such activity can be construed as an offence. Members of the international mission had the impression during our meetings that not much attention has been given to perceptions, to the chilling effect or to how the laws are interpreted by the public generally. Rather, the discussion has centred only on assurances that the laws will be well applied – something those opposing them do not believe.
All countries that respect human rights and individual freedoms grapple with problems of conflicting interests in certain situations. This is recognised in human rights instruments that indicate that freedoms and rights are not absolute. Article 10 of the European Convention on Human Rights as well as Article 19 of the Covenant of Civil and Political Rights both contain explicit limitations of the right to freedom of expression. Many of our interlocutors brought up this possible conflict and stressed that there is no lack of understanding of the possible limitations of rights that new laws or legal amendments may bring. We were ensured that the exercise of balancing rights will be properly undertaken in practice. In most cases this can neither be verified nor contradicted until there is case law on specific provisions. It must, however, be recognised that laws that may limit freedom of expression can have a disproportionate restrictive effect on expression and free media, which is a problem even if such effect may be based on partially exaggerated fears.
Procedural issues
As mentioned, during the meetings with interlocutors it was pointed out that these provisions carry no risk as the interpretation will be made by judges who have experience in making such interpretations. For example, it was suggested that the concept of terrorism was not well defined in existing legislation either, but this has been sensibly applied for years already. It was stressed that there is a need for the subjective as well as the objective element for an activity to be punishable, i.e., an intent to commit terrorist acts. As with any laws, the criteria will be determined through application.
There is no need to question the fact that there is an independent judiciary in Spain, with professional judges. However, when new laws are introduced that may have an effect of limiting freedom of expression, it is important to also keep in mind perceptions and understandings – not just definite negative effects in practice.
One change that was mentioned in different contexts (and that will only be commented upon in general terms here) is that some issues will become administrative offences instead of criminal ones. This is often a positive change as issues should only be criminal offences if the type and seriousness of the issue merit this. People should not risk getting a criminal record for smaller infringements of the law if there are other effective measures that can be taken. At the same time, under the rule of law there are established rules and procedures for the application of criminal sanctions, including possibilities for appeal. Sanctions are normally applied by independent judicial officials in an open process. In the case of administrative sanctions, the method as well as the body applying the sanctions may vary. Without commenting in detail on any of the specific proposed changes, one can generally note that it is very important that the change to administrative offences not lead to abolishing independent judicial review of the sanctions or cause the procedure of application to become less transparent.
The legislative process
It was evident that there is a climate of polarisation in Spain among different political parties, with the governing (and dominant) Popular Party often being isolated against the others, but also with traditional parties, like the Popular Party and the Socialists (and to some extent also the United Left) being in contradiction with the new parties (Podemos, Ciudadanos) and civil society activists. Although it may be the case that such a climate can lead to exaggerated fears about legal reforms, it does not change the fact that it is the role of the government to mitigate such fears and counteract any chilling effect that new or amended laws may have on freedom of expression.
Opposition parties stated that they would abolish new legislation such as the Public Security Law and in some cases some or all of the mentioned changes to the Penal Code and Criminal Procedure Code, if elected. As far as the Public Security Law is concerned we were told that all opposition parties are united in their opposition while for other laws the picture is somewhat more mixed. The Socialist Party supported by four other parties has made an appeal to the Constitutional Court regarding the Public Security Law. They have also used this possibility regarding other laws. The existence of an independent Constitutional Court is a very important guarantee of the rule of law. The process in that Court is, however, slow and decisions can take several years.
The international mission also noted positively that the High Judicial Council has a working group of high-level judges, lawyers and academics that makes reports on new legislation during the drafting stage. This process ensures that the group’s opinion is taken into account, even when such opinion is critical. The government is obliged to ask for the group’s opinion, although the High Judicial Council’s report is not binding on the government. .However, in most cases, its suggestions are followed. The group has recently been critical of some proposed legislation due, among other things, to its possible negative influence on freedom of expression and the government has altered some proposals accordingly. Most notably, the provision on extended surveillance without court order was taken out of the draft reform of the Criminal Procedure Code after a negative assessment by the group.
Recommendations
There should be more clarity in the language of the law and/or other means to ensure that people are not afraid of any negative consequences, such as explanatory notes or clear statements of the intent of the legislation. Such clarity can serve to mitigate the possible negative effects.
For any restrictive law, there is a need to consider proportionality. The more restrictive a measure, the more essential it is that the measure be the only effective way to counteract the serious risk in question. Thus, it is important to first assess the risk and then see what measures can be taken against it, selecting those measures that provide the greatest possible security at the least possible cost to rights and freedoms.
*This article reflects the views of the author as an independent member of the international mission.
