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Freedom of expression is protected under the Spanish Constitution. This right may only be restricted as necessary to protect other recognized rights, such as the rights to honor, privacy, one’s own image, and the protection of youth and childhood. Spain has no specific legal protection against the harassment of journalists. However, it does impose sanctions on cyberstalking or harassment in general, including when carried out online. Journalism organizations have voiced their concerns over the increase in the online harassment of journalists in Spain, especially female journalists. A code of conduct and best practices have been adopted at the news desks of a number of newspapers to protect the victims.
I. Freedom of Expression
The Spanish Constitution (SC) protects the right of persons to freely express and disseminate thoughts, ideas, and opinions through words, in writing, or by any other means. It further protects the right to freely communicate or receive truthful information by any means of dissemination whatsoever, provides for the regulation of means of mass communication under the control of the state or any public agency, and guarantees access to such means by relevant social and political groups, respecting the pluralism of society and the various languages of Spain.
These freedoms may only be restricted as necessary to protect the rights recognized in the SC and the laws implementing such rights--especially the rights to honor, privacy, and one’s own image, and the protection of youth and childhood. The Constitutional Court (CC) has established that freedom of expression and information may only be restricted when it includes expressions that are unquestionably insulting and bear no relationship to the ideas or opinions to be expressed. The CC has recognized that the right to freedom of expression does not protect the use of insulting expressions by the press that are unnecessary in fulfilling reporting activities.
Freedom of expression may not be restricted by any form of prior censorship. The seizure of publications, recordings, and other means of information may only be carried out pursuant to a court order.
II. General Protections from Online Harassment and Disinformation
Spain has no specific legal protection against the harassment of journalists whether they are employed or are freelance professionals. However, the Penal Code imposes sanctions on harassment, including cyberstalking, with imprisonment of three months to two years, or a fine equivalent to six to twenty-four months’ salary. The crime of harassment is defined as carrying out, relentlessly and repeatedly, and without being legitimately authorized to do so, any of the following actions in a way that seriously alters the development of the victim’s daily life:
- Watching, chasing, or seeking physical closeness to someone
- Establishing or attempting to establish contact with someone through any means of communication, or through third parties
- Acquiring products or merchandise, or hiring services, or having third parties contact a person through the improper use of the victim’s personal data
- Attacks against the freedom or property of someone, or the freedom or property of another close person
The penalties provided for in this article apply in addition to any other sanction deemed applicable for the perpetration of the underlying crimes in which the acts of harassment took place. The crimes of harassment and stalking apply to any form of communication, including through online means.
No court decisions on the online harassment of journalists have been identified. It is a grave concern, however, and one especially voiced by female journalists who point to the lack of action on the part of authorities to investigate and prosecute the harassment of journalists. Many organizations representing journalists and freedom of press are expressing concerns about online harassment, especially as it impacts female journalists.
III. Discussions and Proposals for Legislation or Policies to Protect Journalists from Online Harassment and Disinformation Campaigns
A report by the international nongovernmental organization Reporters Without Borders (RWB) states that the Madrid Press Association (APM) and RWB have monitored closely cases of harassment to which a great number of journalists are subjected via social media networks by various parties and ideological currents in Spain.
According to a report by the Instituto Internacional de Prensa (IPI), the hatred of journalists increased during the last decade, as events such as the economic crisis, numerous political corruption stories, and the 2017 Catalonia independence referendum polarized Spanish public opinion such that journalists have become targets of attacks on social media.
The IPI report on Spain issues recommendations to stop the digital harassment of journalists, including protocols in newsrooms to effectively respond to harassment. Successful strategies and best practices adopted in newsrooms in Spain include measures addressing the management of comments on websites. One recommended measure is to require users to register in order to be able to make comments, which reduces the number of aggressive comments against journalists. Another is to manage online comments through a two-step content filter, first with automatic filtering, and thereafter by making an editorial decision whether a comment is suitable for publication. An additional recommendation is to centralize the management of comments in the editorial desk itself.
In response to the measures adopted to block insults and threats in web forums, campaigns to harass and discredit journalists have taken to social media, the IPI report said. News organizations with a strong social media presence hide insulting or violent comments, whether addressed to journalists or other readers. The IPI considers this practice not to be censorship, since all criticism that is not violent or insulting is allowed.
Newspapers such as La Vanguardia, El País, and Catalunya Radio have similar protocols in place to address harassment via social media, whereby
- the journalist seeks the support and advice of the newspaper’s social media team;
- the social media team assesses the seriousness of the case and seeks legal advice;
- if the case is serious, social media platforms are asked to withdraw the comment following protocols in place for this measure; and
- messages are saved and referred to legal counsel and human resources for the purpose of filing legal actions.
Senior Foreign Law Specialist
 Id. art. 20.1.a.
 Id. art. 20.1.d.
 Id. art. 20.3.
 Id. art. 20.4.
 Elena Marín de Espinosa Ceballos et al., Lecciones de Derecho Penal, Parte Especial 174-75 (Valencia, 2018).
 Francisco Javier Eneriz Olaechea, La Protección de los Derechos Fundamentales y las Libertades Públicas en la Constitución Espanola 276-79 (Pamplona, 2007).
 SC. art. 20.2.
 SC. art. 20.5.
 Plataforma en Defensa de la Libertad de Expresion et al., Informe Conjunto Presentado por la Plataforma en Defensa de la Libertad de Informacion (PDIL) et al., para su consideración en la 35a Sesión del Grupo de Trabajo del Consejo de Derechos Humanos de Naciones Unidas para. 36, https://perma.cc/5P9X-2YB7.
 Id. art. 172 Ter.
 Moisés Barrio Andrés, Delitos 2.0 at 141 (Madrid, 2018).
 RSF condena cualquier tipo de presión sobre los periodistas y anuncia el próximo lanzamiento de un informe sobre “ciberacoso”, Reporteros sin Fronteras (Mar. 7, 2017), https://perma.cc/Z2D8-HPKM.
Last Updated: 12/30/2020