In Spain, speech related criminal proceedings have been brought under the Penal Code, which had been heavily criticised prior to the current COVID-19 pandemic. The Government must see through its commitment to reforming this law, as outlined in the proposal by the Spanish parliamentary coalition Unidas Podemos. ARTICLE 19 supports the amendment of these and other provisions, which would make criminal restrictions to freedom of expression compliant with international freedom of expression standards.
Coronavirus misinformation and jokes
On 2 and 6 April 2020, members of Unidas Podemos filed a number of criminal complaints against people who had created and shared “bulos”, or hoaxes, about the allegedly inadequate responses from the Spanish Government to the coronavirus outbreak.
This content included videos and photographs about the number of reported deaths and the management of medical materials to counter the pandemic in Spain. One video claimed that a truck driver was shipping medical material to France diverted from Spain. Another showed pictures of corpses that were allegedly from Spanish hospitals. They were in fact images from unrelated events in Ecuador and the Italian island of Lampedusa. The material suggested that the Spanish Government was hiding the real numbers of deaths in the country and was failing to take appropriate measures to protect its citizens’ health. The members of parliament who filed the criminal complaints with the Attorney General, claim that the creation and online dissemination of these materials through social media and messaging apps is led by a ‘criminal organisation’. They have argued that these acts qualify as crimes of ‘simulating danger’, ‘calumny’ and ‘insult’ to State institutions, and ‘ideologic falsity’ under the Spanish Penal Code.
The Penal Code was also used on 9 April 2020, to arrest a man on charges of incitement to hatred for a joke he posted on Twitter, claiming that he had infected thousands of people during a trip between Madrid and Torrevieja. The National Police justified the arrest by saying that creating jokes and sharing them online is harmful and doesn’t help the fight against the coronavirus.
Criminal prosecutions
ARTICLE 19 submits that any measures to tackle misinformation must comply with international freedom of expression standards, and meet the requirements of legality, legitimacy and necessity and proportionality. The above criminal prosecutions are problematic for a number of reasons:
- Some of the criminal provisions used in the above cases protect State institutions from insults and reputational damage even though under international human rights law these institutions are not rights-holders and cannot be protected from insults, they only have obligations. State institutions have more effective ways of responding to criticism, for example through public counter-statements.
- Online users could be criminalised for sharing information even if they are not aware that it is false or have no intention to harm the public or engage in criminal activities. The right to freedom of expression is not limited to seek, receive or disseminate truthful statements or verified information. Individuals should be able to raise concerns about the spread of coronavirus or the response of authorities without fear of punishment if their concerns turn out to be unjustified. These investigations are likely to have a dramatic chilling effect at a time when more, not less, information is needed to quickly identify and respond to a viral outbreak.
- The right to freedom of expression applies to jokes or satire, even if they are in bad taste or trivial. ARTICLE 19 previously criticised that the criminal offence of incitement in the Penal Code, which is being used in the above case, does not meet international freedom of expression standards. While jokes may be perceived as tasteless, criminalising them does not help combat the spread of the coronavirus, and in fact humour may help people to deal with the situation they find themselves in, as well as to open debate about public interest matters.
- The identification of those who are creating and sharing misinformation, video-makers and disseminators of the involved materials may lead to unnecessary restrictions to the right to privacy of users and the potential and disproportionate monitoring of private communications online.
Positive measure to tackle misinformation
During the coronavirus pandemic, governments may have to combat misinformation, particularly false information about how the virus is transmitted and what people can do to protect themselves from getting it. However, heavy-handed approaches to misinformation stifle the type of public reporting that can lead to early detection and effective mitigation efforts.
ARTICLE 19 calls on the Spanish law enforcement to refrain from using criminal prosecution and other coercive measures as the primary means of combating supposedly false or harmful information online. Instead, the Spanish government should adopt positive measures to tackle misinformation, including being transparent about the extent of the pandemic and their response to it. They should be also promoting media freedom and making sure they are sharing information in a timely way to counter misinformation that might undermine the country’s ability to tackle the virus. In the context of a pandemic, the right to freedom of expression and information is the lifeblood of democracies and now, more than ever, it needs to be at the heart of governments’ responses.
Read more about how States can tackle misinformation in our briefing Viral Lies: Misinformation and the Coronavirus.
Read this statement en español.