The Royal Decree-Law 14/2019 (the Decree) was adopted on 31 October 2019, and was subsequently endorsed by the Parliament on 27 November and has already entered into force. As stated in the Explanatory Memorandum, the Decree aims to establish a regulatory framework for: the prove of citizens’ identity; the electronic identification before public administrations; the data that must be received by the public administrations; the public procurement and the telecommunications sector.
ARTICLE 19 and Amnesty International have analysed the Decree from the perspective of international human rights standards, focusing on the likely impact of its provisions on the right to freedom of expression and information. The analysis is limited to Chapter IV, whose articles substantially modify the Spanish Telecommunications Law (Law 9/2014) in a way that raises strong concerns with regards to the respect of human rights.
The legislative proceeding
According to the Explanatory Memorandum, the urgency to intervene through a Royal Decree-Law comes from the recent and serious events occurred in some parts of the Spanish territory. Those facts, continues the Memorandum, require an immediate answer to avoid that similar events can happen again, and call for a preventive framework whose objective is to protect constitutionally recognised freedoms and to guarantee public security of all citizens.
We are worried about the fact a law that can impact the enjoyment of human rights has been amended through an accelerated procedure, such as the Royal Decree-Law, which does not allow for the introduction of improvements nor amendments in the text. As also noted by a number of civil society organisations, the government has failed to adequately prove the grounds of urgency: indeed, one of the reasons to justify the Decree is the implementation of a European law that, however, entered into force 6 years ago.
The amendments to the Spanish Telecommunications Law
ARTICLE 19 and Amnesty International recall that under international freedom of expression standards, in particular Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR) and Article 10 of the European Convention on Human Rights (European Convention), any restrictions on freedom of expression are required to meet specific circumstances, often articulated as a three-part test. Restrictions on freedom of expression must:
- Be prescribed by law – that is, formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly. Ambiguous, vague or overly broad restrictions are therefore impermissible.
- Pursue a legitimate aim – exhaustively enumerated in Article 19 para 3 of the ICCPR and Article 10 para 2 of the European Convention;
- Be necessary and proportionate – this requires that there must be a pressing social need for the restriction and that the restriction is appropriate to achieve its protective function.
ARTICLE 19 and Amnesty International find that various provisions of Chapter IV do not meet the requirements of this three-part test.
Article 6 Section 1, which amends Article 4(6) of the Telecommunication Law, provides that the Government could attribute, exceptionally and temporarily, to the General State Administration the ‘direct management’ or the ‘intervention’ in electronic communications network or service. This can happen in exceptional circumstances that can affect “public order, public security and national security.” These provisions do not set any obligations to consider human rights standards in such situations or the need for judicial authorisation of the decision.
We note that:
- Under international standards, cutting off Internet access, or even access to parts of the Internet, for either the whole population or part of the population is a disproportionate interference with the rights to freedom of expression and information. As the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has noted, “[n]ecessity requires a showing that shutdowns would achieve their stated purpose, which in fact they often jeopardize.” Hence, in order not to constitute an illegitimate interference in the freedom of economic activity of providers, nor in the freedom of expression of end users, the exceptional and temporary character of the Government’s power must be clearly defined and its scope considerably narrowed based on the principles of necessity and proportionality.
- The power to take the direct management or the intervention in electronic communications network or service was already granted by the previous versions of the Spanish Telecommunications Law (Article 4.6 of the 2014 version and Article 4.5 of the 1998 version, respectively). However, in the previous formulations this power was bound by the rules on public procurement, which allowed an intervention in circumstances such as: (i) in case of serious and not repairable disruptions caused by non-compliance of the provider; (ii) in those situations where the Administrations, for reasons of public interest, could have agreed on the recovery of the service. Even in the previous formulations, these provisions raised concerns about their compliance with international standards. The situation has worsened with the amendments introduced by the Decree, which have eliminated the reference to the regulatory framework on public procurement, thus substantially widening the scope of the power granted to the General State Administration, in an even more blatant violation of the principles of necessity and proportionality.
- A number of key terms, which were not defined in the previous versions, are not defined in the Decree either. For instance, neither the concept of ‘direct management’ nor that of ‘intervention’ have a definition in the text of the norm. Therefore, it is not clear what powers are granted to the General State Administration, and these powers appear potentially limitless. Equally, it is not clear what the Decree means by the term “public security” as compared to “national security”: the former appears a repetition of the latter, or at least a broad overlap. Furthermore, with respect to the previous formulations, the Decree adds the concept of “public order” to the list, which can be very widely interpreted by administrative authorities. All in all, this wording creates unwanted confusion, undermining legal certainty. Amnesty International and ARTICLE 19 note that, for example, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, highlight that “national security may be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force” and not “to prevent merely local or relatively isolated threats to law and order” or as “a pretext for imposing vague or arbitrary limitations.” As for “public safety”, the Principles define it as “protection against danger to the safety of persons, to their life or physical integrity, or serious damage to their property;” while “public order” is defined as “the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded” and “respect for human rights is part of public order.”
- Finally, Section 1 states that the intervention can cover “any infrastructure, associated recourse or element or layer of the network or of the service” that it is seen as necessary to preserve or re-establish public order, public security or national security. ARTICLE 19 and Amnesty International highlight that this vague and over broad wording could include actions as different as blocking, filtering or even Internet shutdowns. However, as noted earlier, measures to block particular websites, services or uses, or to deny individuals the right to access the Internet, are extreme measures which must meet the strict requirements of the three-part test.
Article 6 Section 5, which amends Article 81(1) of the Spanish Telecommunications Law, provides that in case of “compelling urgency” based on one of the circumstances listed in the section, the Ministry of Economy and Business can, without prior hearing – and therefore without prior judicial order – impose the termination of the alleged infringing activity. Amnesty International and ARTICLE 19 raise the following concerns about these provisions:
- These provisions grant enormous and unlimited discretion to the government, by a decision of the Ministry, in areas that should rather be dealt with by the judiciary or an independent authority.
- Additionally, ARTICLE 19 and Amnesty International reiterate concerns about the lack of definition of key terms. Section 5 does not contain any indication on what constitutes “compelling urgency” or 6 what is meant by “public order, public security and national security” (Section 5a) or “serious harm to the functioning of public security, citizens’ protection and emergency” (Section 5c).
- The provisions allow for interventions in case of “serious interference with other electronic communications’ services or networks” (Section 5d) and “serious economic or operational problems to other providers or users of electronic communications networks or users, or to other spectrum’ users” (Section 5e). In this latest case, it doesn’t even meet the requirements and safeguards foreseen on the provision of the Directive that says to implement. In both cases, it is not a sufficient ground for intervention by a Ministry without previous hearing and without the issuing of a judicial decision. ARTICLE 19 and Amnesty International note that states might have a public interest in intervening in the case of the misuse of spectrum, because it is a scarce public resource which should be used in the most efficient way to the benefits of individuals and society. However, with regard to the cases of serious economic or operational problems to other providers, the possibility of the Ministry’s intervention would have the effect of picking winners, to the detriment of fair and open competition in the market. This possibility to intervene should remain, eventually, in the hands of the independent regulatory authority dealing with the sector, or with the judiciary following a complaint of the interested parties.
ARTICLE 19 and Amnesty International therefore call on the Spanish Government and on the Spanish Parliament to immediately suspend the application of the provisions violating HR standards and bring the Telecommunication Law into full compliance with international human rights standards. In summary:
- Key terms, such as ‘public security’, ‘public order’, ‘direct management’, ‘compelling urgency’ or ‘emergency’ must be narrowed and clarified in accordance with international standards and best practices;
- The over broad scope of Article 6 Section 1 should be narrowed and Article 6 Section 5 a) should be drastically limited in its scope in accordance with international freedom of expression standards;
- Mechanisms have to be introduced to guarantee that the authorities’ interference under Article 6 Section 1 is not arbitrary;
- Article 6 Section 5 d) and e) should be repealed, while there is no an effective judicial control and sufficient safeguards mechanism in place.
This statement is also available en Espanol.