List of Relevant Laws Impacting Free Speech (Spain) (2015-2022)
Organic Law 1/2015 of 30 March: https://www.boe.es/diario_boe/txt.php?id=BOE-A-2015-3439
In 2015 a comprehensive reform of the Criminal Code was adopted. Among many other aspects, it significantly affected the regulation of hate speech under article 510. The explanatory memorandum of the law refers to Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law to justify this reform. However, the reform enshrined a very broad notion of hate speech, which does not necessarily require the concurrence of a direct and justifiable link with incitement to discrimination, hostility or violence.
Organic Law 4/2015 of March 30 on the protection of public safety: https://www.boe.es/buscar/act.php?id=BOE-A-2015-3442
The Law included in its original version as a serious offense subject to fines of 601 to 30,000 euro, the unauthorized use of images and other data of members of security forces in the event that such endangers principles as broad as “the personal or family safety of the agents, the protected facilities or the success of an operation, with respect to the fundamental right to information” (Article 36.23). It also punishes “lack of respect and consideration” for agents of the authority. In 2020, the Constitutional Court declared that article 36.23 was not aligned with the constitutional protection of the right to freedom of information.
In 2019, a series of Catalan politicians and activists were sentenced to 9-13 years of prison over 2017 independence referendum and its aftermath. Convicted individuals were found guilty of sedition, disobedience, and misuse of public money. Decisions were confirmed by the Constitutional Court. In 2021 the Government issued partial pardons (regarding the sedition conviction) for all defendants thus releasing all from prison. Ban on a return to public office was maintained as penalty for other crimes.
The European Court of Human Rights (ECtHR) found in Stern Taulats and Roura Capellera v. Spain (2018) that the Spanish courts had violated the freedom of expression of two citizens by imposing criminal sanctions for expressing political disapproval by burning a picture of the Spanish royals during an official visit.
In 2017 the National High Court convicted writer and activist Cassandra Vera to a year in prison for the publication of a tweet containing a joke about the death of Luis Carrero Blanco, the Head of Government during the dictatorship of General Franco, as a result of an action by the terrorist group ETA. Vera was acquitted by the Supreme Court in 2018.
In 2018 the Supreme Court confirmed the conviction and sentence of a rapper on charges of hate speech and incitement to terrorism. The rapper had made public audio and video archives of his songs which included lyrics valorising groups regarded as terrorist and calling for violence against politicians and the Spanish royal family. The Court held that the lyrics constituted criminal offences because they created an atmosphere of fear and anxiety and that it was irrelevant that the rapper did not intend to harm any person. The Court found that imprisonment was a proportionate response and confirmed the lower court’s sentence of three and a half years’ imprisonment. The Constitutional Court refused to review this case.
In 2020, the Constitutional Court revoked the judgment of the Supreme Court that had sentenced a singer and songwriter to one years’ imprisonment after the singer published a series of tweets seeming to support two terrorist groups. The ruling of the Constitutional Court considered that the decision of the Supreme Court did not take into account the preferred position that freedom of expression occupies in any democratic society and the repressive nature of criminal sanctions which should be applied as the last resort of the judiciary.
In 2022 the Supreme Court confirmed the decision of the Central Election Commission considering reasonable and proportionate Twitter’s decision to suspend the account of the political party Vox on grounds of racist comments