In Spain recently there have been several cases of prosecution of Twitter and Facebook users for using these social networks to glorify terrorism or insult its victims.

These social messages may be considered "glorifications or justifications of terrorism" or cause "insult or humiliation of victims of terrorism" - crimes under article 578 of the Spanish Penal Code. Here we look at the two cases that have received the most attention from the press.

The Guillermo Zapata Case

Guillermo Zapata has been a council member in the Madrid city government since the local elections in May 2015, and belongs to a new grassroots municipal political platform called "Ahora Madrid."

Shortly after his inauguration, a suit was brought against him for a series of messages published on Twitter in 2011 that constituted, in the opinion of the prosecution, an act of humiliation of the victims of terrorism.

Dark humor

The messages were examples of dark humor, joking about a victim of terrorism who lost her legs in an attack. The jokes were cited in quotation marks and, according to Zapata, they formed part of a conversation about the freedom of expression and dark humor: their only purpose was to serve as examples of jokes in bad taste.

The investigating judge archived the case at first, inasmuch as a) the victim in question stated before the court that she did not feel humiliated by these jokes and b) while the jokes might be considered morally reprehensible, dark humor is protected under the freedom of expression.

Closed and opened

The public prosecutor’s office retrieved the case from the archive and the Penal Chamber of the National High Court ruled that the case should remain open, that Zapata should testify, and that it should be determined whether the community of victims of terrorism as a whole felt humiliated, not just the individual victim to which the jokes referred.

After interrogation, the investigating judge archived the case again, arguing that the accused did not intend to humiliate the victims.

Nonetheless the National High Court has again ordered that the case remain open (and that the trial ultimately take place) as it should be a criminal court, and not an investigating judge, that determines whether or not jokes of this kind are protected under the freedom of expression or not.

The César Strawberry case

César Montaña, alias César Strawberry, is a writer, composer and singer in the rap/metal group Def Con Dos, known for his sarcasm and dark humor.

He was one of the people arrested in May 2015 in a police operation against Facebook and Twitter users who had, according to the authorities, committed crimes of glorifying terrorism, humiliating victims of terrorism, or insulting the monarchy.

Specifically, he was prosecuted for messages published in 2013 and 2014 in which he used sarcasm to insult — even to wish death upon — various Spanish public officials, including the king of Spain, and he made fun of some victims of terrorism.

Known for his sarcasm

The investigating judge decided to archive the criminal proceeding against him because, while all the messages were tactless, they formed part of a social critique. As the author is known for his use of sarcasm and irony, the judge held that the messages should be protected under the freedom of expression.

Moreover, according to the judge, Strawberry’s intention was to emphasize his opposition to the political opinions of the persons he named, but not to praise terrorist organizations or acclaim their members.

In this case, the Penal Chamber of the National High Court has again ordered that the proceeding continue, arguing that many of the messages might indeed be considered a defense of terrorism, and that a trial should be held in order that a criminal court might rule whether or not these Twitter messages should be considered a crime.

Controversial anti-terror legislation

We will have to wait to know what the Spanish courts ultimately rule in these cases. We should recall that after his visit to Spain in 2008, the special rapporteur to the United Nations on terrorism and human rights called upon Spain to revise its definition of the crime of justification of terrorism.

The revision should ensure that it "might only be applied to these acts which aim to incite crimes of terrorism, with a real risk that such a crime might in fact be committed," and not be applied to mere opinions.

This penal classification, in his words, “should not be used as a means of limiting freedom of expression.” He recently reaffirmed this position when asked about the matter in an interview with Rights International Spain.