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Civil Rights

The Partido Popular Assaults Spain’s Constitution

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Spain’s governing Partido Popular continues its assault on civil rights and representative democracy with two measures passed over the past 6 weeks. On 30 October – yes, just before Halloween – the Spanish Parliament approved a reform to the already existing Intellectual Property Law[1], while on December 11th it also approved the infamous Citizen Security Law. The latter is nefarious enough that the Spanish already call it the “Gag Rule” (Ley Mordaza)[2] and it has been compared with the Public Order Law of 1959[3], promulgated by Franco’s fascist dictatorship. It may not be completely coincidental that Spain’s Interior Minister, Jorge Fernández Díaz, is the son of a fascist military officer who fought for the Caudillo in the civil war.

No wonder it has been ringing alarm bells with both local and international civil rights groups.

chill

These laws were approved in a purely partisan fashion: only Partido Popular delegates voted in favor of them, every other political formation voted against them in the Parliament. They have done so despite (or more likely because of) the protests of civil society, the deep misgivings of Spanish jurists and constitutional authorities, and the strenuous objections of human rights organizations and the EU. They have done so principally because the Partido Popular remains a deeply illiberal organization, paranoid and reactionary. The dual challenges of Catalan secessionism and Podemos populism feed this siege mentality and have Spanish conservatives more worried than they have been since 1936[4]. The Populares have always equated their political interests with Spain’s national interests, despite plenty of evidence to the contrary; and have always ignored the difference between law and justice.

What new burdens exactly do these legal reforms impose? The most famous impact of the reform to the Intellectual Property law involves the inalienability of copyright. It is already well-established that authors and publishers hold copyright to their material, and other nations – including France, Belgium and Germany – allow copyright holders to charge aggregators like Google News for reprinting snippets of their material on their webpages. Most choose not to, because Google has said that it will only take material from publishers who don’t charge: and Google drives sufficient traffic that publishers would rather forgo the revenue stream from the charge than lose the much bigger revenue stream from Google-directed visitors.

In order to avoid this dynamic, Spanish parliamentarians have legislated that copyright holders cannot agree to withhold the charge or else they face a fine themselves. The fine is substantial, potentially hundreds of thousands of euros. The management service AEDE[5], an association created by the Spanish government in 1977, would be in charge of gathering and disbursing the fees to its members. It should be noted that while AEDE has been a major supporter of the government’s scheme, many of its members have been strongly opposed to it. That, apparently, has not mattered at all.

The impact of the “Google Tax” has been the most dramatic of the two so far. Google quickly announced that it would close the Spanish offices of Google News on December 16th, which was hardly unexpected. Yahoo has also been reducing staff in Spain, though far more quietly. These won’t be the last to do so. Much more damagingly, Google has also announced that not only would Spanish media be removed from Google News, they would be removed from the general search index as well[6]. After all, the new law makes no distinction between a general index and a news aggregator and Google has no intention whatsoever of paying that fee.

AEDE’s reaction, through their spokeswoman Irene Lanzaco, was taken aback:

“Of course they are free to close their business, but one thing is the closure of Google News and quite another the positioning in the general index.”

In other words, “oh pooh.”

SPA media hits

 “Oh pooh” is right; according to web analytics Chartbeat, external traffic on Spanish sites fell by double digits the day Google yanked the sites from their indices[7]. Far from reaping any sort of profit, Spain has managed to hurl itself into a digital Black Hole of Calcutta. Without the services of aggregators like Google and Yahoo, Spanish media will suffer a massive loss of traffic and the resulting revenue. This is clearly not what AEDE intended, though it was predictable enough; but it may be precisely what the Spanish government intended. After all, the members of AEDE are the large dailys, media companies that can still survive without Google’s traffic but who will now be more beholden than ever on the government’s business: and thus more amenable than ever to taking the government´s position. Smaller, independent editors – precisely the ones most critical of the government and least influenced by it – are the ones who will find it most difficult to weather the storm.

But that means a reduction of criticism as well and fewer voices calling out the gross corruption and incompetence of the Spanish government. Where Mr. Worstall of Forbes accuses the Populares of “purblind incompetence” in public policy making, I disagree: this outcome is precisely what the Partido Popular wants. More control over mainstream media, fewer independent media outlets, and less coverage overall of their shenanigans.

The Intellectual Property reform has other sections that are vaguely worded enough to also be a source of future mischief[8]:

  • The concept of copyright infringement extends not only to the owner/administrator of a website who – now illegally – links to a Spanish media site, but to anyone else who may do so on their website, i.e. visitors, commentators, etc…;
  • Anyone who is accused of violating the new copyright laws will be notified of the fact; and if they agree to remove the offending material, their action of removal will be deemed an admission of guilt and still leave them liable to civil action and liability from the injured parties;
  • The concept of copies for private use now enters into vague territory as certain types of digital purchases (e.g. digital only copies, streaming videos) do not have the “physical devices” required by the law for ownership;
  • Creative Commons licenses are now open to challenge since the law declares authorship rights to be inalienable. So too are works of public exhibition as the authors and actors/interpreters must retain their rights to the work;
  • University professors, who have long engaged in the common practice of distributing photocopies of fragments of scholarly works for study by their students, may now find their practice to be either illegal or very expensive. Nor can the authors now “authorize” the practice; the copyright and the fee cannot be renounced. This will have a severe impact on students, who will now either have to pay more for books and articles, or will simply be exposed to far less material.

If the first measure is an assault on both freedom of speech and freedom of the press, then the second is a blatant infringement on the freedom of assembly and a usurpation of power by the government, as represented by the police forces, and the protection of judicial review. The new law makes the Spanish police into judge and jury, without right of appeal. The Digital Rights reform strikes me as unsavory rather than sinister; a typical piece of cronyism that both greases the wheels of the big vested interests while squeezing the troublesome little guy. It is more akin to amoral than immoral.

The Citizen Protection Law is not so ambiguous. It is not the legal establishment of a police state, as some of its more vehement detractors claim, but it is a very serious attack on Spanish civil rights and a grave step towards police impunity. The law[9] establishes 7 types of “very grave” infractions that carry an administrative fine between 30,001 and 600,000 euros; while another 31 actions are classified as “serious” and 20 more as “light” infractions, with fines of between 1,001 and 30,000 euros and between 100 and 1,000 euros, respectively. The law attacks fundamental rights guaranteed in the Spanish Constitution in a three ways: by burdening the right of assembly to the point of restricting it altogether; by vastly expanding state and police powers with a set of vaguely worded sanctions of almost universal applicability; and by strictly limiting the public and judicial accountability of the police in the execution of these new powers.

New burdens on the right of assembly:

  • The new law does away with the right to spontaneous assemblies and demonstrations. Although this is not an absolute right – no right is – it is a well-established principle in both American and European constitutional frameworks. The European Court of Human Rights holds: “that the right to hold spontaneous demonstrations may override the obligation to give prior notification to public assemblies only in special circumstances, namely if an immediate response to a current event is warranted in the form of a demonstration.”[10] The new Spanish law, prompted by the Partido Popular’s chagrin at the wave of mass demonstrations against Aznar’s Iraq policy in the wake of the 2004 Madrid train bombings, would do away with the right to any unannounced demonstrations or assembly.
  • Public disturbance while wearing any article that makes facial identification difficult. If a police officer decides that I am causing a public disturbance during an otherwise legal demonstration, and if I happened to be wearing a hooded sweater or hat, I am liable to a fine of between 1,001 and 30,000 euros for this grave infraction. While the law is obviously aimed at the now ubiquitous Guy Fawkes masks (a.k.a. “V for Vendetta” masks), the law is written in such a manner that pretty much anything that touches the face could be considered “making facial identification difficult”.
  • The new law establishes a principle of unlimited responsibility for organizers of a lawful demonstration. If someone organizes a march, notifies the authorities and receives their approval, and subsequently one of the marchers creates a disturbance, they are liable for the same offense as the person causing the ruckus, whether they were physically present or not. All of the organizers could be so sanctioned. Furthermore, if I receive notice of the march and simply retweet it to my followers, I could be considered an “organizer” and similarly sanctioned.

Expansion of state and police powers, vague new sanctions

  • It grants the police the right to stop anyone, at any time, and demand their national identity document without giving any justification for the stop whatsoever. This is a violation of the “unreasonable search and seizure” protections that the Spanish Constitution has (similar to our own Fourth Amendment protections). Temporary detentions are permitted in both systems so long as they are justified by “reasonable suspicion” – the new reform dispenses with that requirement. Failure to provide your identity card is considered a “light infraction” with a fine of up to 1,000 euros.
  • “Offenses and insults to Spain, autonomous communities, local public entities or institutions, their symbols, anthems or emblems, by any means”. The definition of “offenses and insults” is left undefined and entirely up to the authorities. If someone writes “the government of Spain is corrupt”, this could be considered insulting, and sanctioned a grave infraction. I suppose, on the other hand, that the Catalan government could fine anyone who expresses the opinion that Artur Mas or the Generalitat is a bastion of fascism (a very commonly expressed opinion in some quarters) which only goes to show how dangerous these lackadaisically written laws are to freedom of expression.
  • In a similar vein, “Offenses and insults against public institutions, authorities, agents and employees, by any means, as well as lack of respect for them.” Lack of respect for them? Again left undefined and at the whim of the very authorities for whom respect is being demanded. If I write, say or transmit in any way that “the police are abusing their power”, this could constitute a lack of respect for the institution and/or the agents themselves, exposing me to a fine of up to 1,000 euros;
  • “Justification of terrorism, xenophobia or violence against women, such as through the exhibition of photos of terrorists.” I’m certainly not in favor of terrorism or xenophobia, much less violence against women, but this article is so ill-defined that almost anything can be considered a violation. This article is clearly aimed at Basque and Catalan nationalists, but theoretically, I could be fined for writing about the historical context of Palestinian terrorism, if authorities considered that it served as a “justification”. Given the pro-Palestinian leanings of the Spanish government, I’d probably be on safe ground. And when does resistance become terrorism? What about the situation in Tibet, where the Chinese government is extremely generous with the label of terrorist towards ethnic Tibetans, but no one else is. If I argue that the Tibetans are justified in resisting the Chinese government, I could conceivably be fined for “justifying terrorism”, or xenophobia, or both.
  • The new law also criminalizes the practicing of sports or exercises in public areas not prepared for such a purpose, when there is risk to people; and also “obstructing pedestrian traffic”. Jogging on the street is now a sanctionable act, if the police don’t like my looks. Walking slowly, stopping in front of a store window, stopping to look at a map or answer a phone call in the middle of the sidewalk could all be considered an obstruction to pedestrian traffic. If the police tell me move along and I don’t immediately jump along as fast as they think appropriate, I could also be fined for disobeying the orders of the security forces.

Limiting public and judicial accountability of state and police forces

  • “Threaten, coerce, harass or insult police and public safety agents while they are engaged in the preservation of public order, such as during demonstrations or other types of protests, and the recording and dissemination of their images that offend against their honor or their image and which can place in danger their personal safety or the execution of their duties.” In other words, if I record and image of the police or Guardias Civiles beating someone senseless and transmit it online, I’m guilty of either offending the honor of the police, putting the agents in danger of reprisal, impeding them in the execution of their duties, or all three. Given the demonstrated importance of private citizens and their video evidence in documenting cases of police brutality, the fact that Spain now considers this to be a misdemeanor is extremely worrisome.
  • The aforementioned sanctions and fines are all administrative in nature means that no judge is involved; there is no review of the police’s criteria for levying the sanction; there is an administrative appeals process, which does not go through a court either and which the appellate must pay for even if they win the appeal. By removing the possibility of private video evidence and judicial oversight from police actions, the security forces have virtual carte blanche to apply these new laws in any way they see fit.

Whether Spain’s various public safety bodies choose to exercise their newly granted license remains to be seen, but history teaches that accuses will occur sooner or later in any environment where they are permitted or even encouraged. This is not a criticism of Spain’s police forces; on the contrary, my infrequent interactions with the Metropolitan Police have always impressed me with their professionalism and common sense. But human nature is what it is, and power always exerts its corrupting influence.

misdemeanor

Some of these measures might seem reasonable or at least not sinister; after all, why would any law-abiding citizen be worried about police stopping them and fining them for jogging in the street? It would never stand up in court, after all. In fact, the Partido Popular has argued that these new, tougher laws are necessary because of the wave of lawlessness unleashed in the wake of the Ocupados movement and the protests against government corruption, the bank bailouts and the mass evictions of homeowners struck by the crisis. Popular delegates cited over 1,000 violent incidents during protests since September 2012, along with 47.5 million euros in damages and over 800 civilians and 600 agents injured.

Unfortunately, these figures are false.[11] They do not coincide with the information provided by the government’s own Interior Ministry. These indicate that there have been only 72 violent incidents in the more than 90,000 registered protests, not the 1,000 alleged by the Populares. There is no clarification of where the figure of 48 million euros in damages came from, nor the number of injured people. In simple English, the Partido Popular made them up and didn’t even bother to have the Interior Minister, the main proponent and beneficiary of the reforms, validate the statistics. They just didn’t matter – the conservatives hold an absolute majority in the legislature until at least 2015. Conservatives didn’t even bother explaining why the existing raft of anti-disturbance laws and the ample police powers to enforce public order are insufficient: they merely stated that they were.

No court would be involved to protect the innocent jogger from harassment; no one would be reviewing these citations to determine if they were justified or not. Law-abiding citizens would be afraid simply because they would be at the mercy and whim of the state, without real recourse. The ostensible purpose of these new laws is “to guarantee the normal development of liberty for all.” If so, it is a guarantee of obedience through fear. The real purpose and effect of the reforms is to extend the threat of sanction over the citizenry and dampen the desire and ability of ordinary people to speak against, write against, organize against and protest against any actions the government deems justified. Nothing is outlawed, but everything is sanctionable: who will risk raising their hands or heads in protest?

Spain is not yet in danger of becoming an authoritarian state, though it is in danger of becoming increasingly like Turkey or Hungary: an illiberal democracy. For there is more to democracy than voting periodically, and wherever citizens are obstructed, discouraged, prevented, fined and imprisoned for exercising their inalienable rights it is very hard to call that place a democracy. Given how hard the Populares are working to subvert regional electoral laws[12] in advance of the 2015 municipal elections, even the suffrage is being undermined. No one denies that Spain has come a long way from the dictatorship of Franco, but no one ought to argue that Spain doesn’t still have a long way to go to get out from under the Caudillo’s long shadow.

It is particularly ironic (though it shouldn’t really be) that the party that has most vehemently argued for an uncompromising defense of the Spanish Constitution in the face of Catalan and Basque independence challenges is the same party that is so savagely attacking the rights of citizens guaranteed within that same document. Why should anyone wonder then that so many Catalans express an absolute distrust of the Populares as their prime motivation, rather than a burning desire for an independent state? Politicians like Education Minister Wert and Interior Minister Fernández Díaz are the best arguments the Esquerra Republicana has ever been given to argue for independence. And so long as the government continues to assault civil liberties, they will continue to undermine their own arguments for respecting the Constitution. A constitution worth no more than the paper it is printed on is one that the Catalans will certainly continue to reject.


 

Sources and Notes

[1] Also known as the “Google Tax” (Tasa Google)

[2] Proyecto de Ley Orgánica de Protección de la Seguridad Ciudadana

[3] Ley 45/1959 de Orden Público (Boletín Oficial del Estado)

[4] The Spanish election of 1936 returned a Popular Front government to the Second Republic which led directly to the Civil War

[5] Asociación de Editores de Diarios Españoles, or Association of Spanish Newspaper Editors

[6] Tim Worstall, “That Was Fast; Spain Already In Full Retreat Over Google Tax,” Forbes, 15 December 2014

[7] Mathew Ingram, “External traffic to Spanish news sites plummets after Google move,” Gigaom,

[8] Pablo Romero, “Así afectará a Internet la reforma de la Ley de Propiedad Intelectual,” El Mundo, 05 November 2014

[9] Laura Camacho, “¿Qué sanciona la nueva ley de Seguridad Ciudadana?” Público.es, 29 November 2014

[10] Page 952, Michel Rosenfeld, András Sajó, “The Oxford Handbook of Comparative Constitutional Law”, Oxford University Press, 17 May 2012

[11] Luís Sanchis, “El PP falsea los datos sobre disturbios violentos para justificar la Ley de Seguridad Ciudadana,” El Diario, 12 December 2014

[12] “Castilla-La Mancha aprueba sólo con los votos del PP la reforma que reduce la Cámara a 33 diputados,” El Mundo, 21 July 2013

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Discussion

2 Responses to “The Partido Popular Assaults Spain’s Constitution”

  1. You should check out a fascinating new ebook entitled ‘The Reign in Spain’ by author W. Kristjan Arnold. Anyone interested in Spain, history, and politics will enjoy. Available at Amazon Kindle.

    Posted by Tom Maentz | October 25, 2016, 03:07
  2. i live in barcelona, spain, and i use to read opinion columns and articles on the spanish newspapers. This one is, by far, the most informative and best that ive seen about the issue of the new law. A brief and condensed clear explanation. I don’t write now to congratulate you, thing that i do also, but to remark how worrying is the way of acting of the spanish media if this article is the best that i’ve read about this issue.
    I watched the interview that was done on the news tv channel of the national public tv to Pablo Iglesias, the leader of “podemos”. whatever he likes me or not (that in fact it doesn’t very much: is vague, unclear, populist and too similar on some ways to the ones that he criticizes on language terms) that interview was shameful to the watcher, so unbalanced the comentators table, so offending to him..! And being the main representative of the current main political party on vote intention, was the 1st time to be seen on the public tv. Is not this fact itself enough explicit? so my letters are just to vindicate how right is you on your analisis and how worrisome is becoming the spanish political evolution.
    sorry for my english lacks.

    Posted by jordi L | December 22, 2014, 20:00

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