Spain: Briefing on the Penal Code and threats to freedom of expression

Summary

Spain’s Penal Code is being used to target political and artistic expression, especially online, and expression that the Government considers embarrassing, inappropriate or offensive. The provisions that are of concern relate to terrorism, ‘hate speech,’ defamation and insult and protection of state institutions, which can lead to severe criminal penalties. ARTICLE 19 is calling for the Spanish National Government and Parliament (Cortes Generales) to substantially reform the Penal Code to bring it in line with international standards on freedom of expression. This briefing outlines the main areas of concern and our recommendations.

Examples of how the Penal Code has restricted freedom of expression

  • Rapper César Strawberry was sentenced to a year in prison for publishing tweets that appeared to endorse terrorist groups and then recently acquitted by the Constitutional Tribunal, which stated that his sentence constituted a violation of his right to freedom of expression.
  • Rapper Pablo Rivadulla, also known as Pablo Hásel, was initially sentenced to two years and one day of imprisonment (later reduced to nine months and one day following an appeal before the Spanish High Court) and a fine of EUR 24,300, for glorifying the terrorist groups ETA and GRAPO (Article 578) through his songs and tweets.
  • Alfonso Lazaro de la Fuente and Raul Garcia Perez, two puppeteers, were detained for five days on suspicion of “glorifying terrorism” for a satirical performance in Madrid.[3] The investigation was later dropped without charges under Article 578 but remained under a different offence, also dismissed in 2017.
  • Jose Miguel Arenas Beltran, known as Rapper Valtonyc, was sentenced to three years and six months in prison for lese-majesté provisions of the Penal Code, the judges determined that his songs published on the Internet include expressions against the King and his relatives.

Restrictive provisions in Spain’s Penal Code 

Many provisions are extremely broad and vague and can be used to restrict expression. In particular:

  • provisions criminalising “terrorism” and the “glorification” or “incitement” of terrrorism, as well as the criminalisation of accessing “online terrorist content”. These provisions were amended in 2019 in order to transpose Spain’s obligations under the EU Directive 2017/541 on combating terrorism; however, they are still overly broad and fail to include crucial elements to comply with international human rights law. A failure to properly define ‘terrorism’ and what would constitute ‘glorification’ puts a wide range of expression, including for example controversial political and artistic expressions, at risk of criminalisation under the la
  • provisions on different types of ‘hate speech’ that do not sufficiently distinguish between the severity of the expression and its impact, and therefore fail to adequately determine proportionate sanctions that comply with international human rights standards; and
  • provisions providing protection to a wide range of State institutions and public officials from offence and insults. State institutions are not rights-holders under international human rights law.

Recommendations

ARTICLE 19 proposes the following recommendations to align the Penal Code to international standards on freedom of expression:

  • tighten the definition of “terrorism” to avoid capturing expression that does not pose an immediate threat to national security; and repeal provisions criminalising “glorification” and “incitement of terrorism”, to include definitions of “intent” and “likelihood” of the action without merely targeting its expression;
  • revise measures on accessing terrorism related content online;
  • decriminalise defamation;
  • repeal provisions criminalising the insult of symbols of the State, the Royal Family and the Armed Forces;
  • repeal provisions protecting the followers of a religion or belief from offence or insult. Only protections for incitement to violence, hostility and discrimination on religious grounds should be permitted. The State should make positive efforts to promote religious tolerance in place of criminal sanctions; and
  • revise provisions criminalising ‘hate speech’ to restrict their application solely to cases prohibited by international law.

International human rights standards:

UN experts have called on Spain to reform the terrorism related provisions of the Penal Code.  The European Court of Human Rights also found prosecutions under some of these provisions to violate the right to freedom of expression. In January 2020, during the third cycle of the Universal Periodic Review (UPR), Spain received 20 recommendations on freedom of expression, including the recommendations to decriminalise defamation, repeal restrictive laws on the grounds of religious insult, and amend the provisions of the Penal Code that impose unduly limitations on the right to freedom of expression and peaceful assembly. ARTICLE 19 has called on the Spanish Government to accept these recommendations in their entirety.

Under international human rights law, States may exceptionally limit freedom of expression. The restrictions may be legitimate only under specific circumstances, requiring that limitations must:

  • be provided by for law: any law or regulation must be formulated with sufficient precision to enable individuals to regulate their conduct accordingly;
  • pursue a legitimate aim: these are: respect of the rights or reputations of others; the protection of national security, public order (ordre public), or public health or morals; and
  • be necessary and proportionate: States must demonstrate in a specific and individualised way the precise nature of the threat, and the necessity and proportionality of the specific action taken. In particular, they must establish a direct and immediate connection between the expression and the threat.

In relation to ‘hate speech’, international law provides that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence must be prohibited by law. The expression of hatred towards an individual or a group on the basis of a protected characteristic can be divided into three categories, depending on the response required from States under international human rights law. These are:

  • severe forms of ‘hate speech’ that international law requires States to prohibit, including through criminal, civil, and administrative measures, under both international criminal law and international human rights law;
  • other forms of ‘hate speech’ that States may prohibit to protect the rights of others, such as discriminatory or bias-motivated threats or harassment; and
  • ‘hate speech’ that is lawful but nevertheless raises concerns in terms of intolerance and discrimination, meriting a critical response by the State but which should be protected from restrictions under international law. 

Resources

Read our full legal analysis of the Spanish Penal Code en español and in English.

Use our Hate Speech toolkit in Spanish

Watch ourTackling Hate video in Spanish

Contact

Roberta Taveri, Programme Officer ARTICLE 19, [email protected]