Tech & Rights

Spain Backs Away From Serious Gag Law Reform

The new government's plan to reform the infamous "gag law" does not come close to satisfying the concerns of human rights advocates and Spanish citizens.

by Jonathan Day

Optimism ran high this summer after Spain's new government promised to make meaningful changes to the Law on Citizen Security, widely known as the "gag law" because of the severe restrictions it places on freedom of speech and freedom of assembly. But that optimism has ebbed now that the reform process is moving forward. The current amendments and negotiations in Parliament would leave in place the parts of the law that most severely restrict human rights.

How we got here

The Law on Citizen Security was proposed in 2013 by the government of then Prime Minister Mariano Rajoy, whose right party enjoyed a majority in both houses of Parliament at the time. Ostensibly, the law was intended to improve people’s safety and protect public order. In reality, it was intended to help Rajoy’s party silence dissent at a time when anti-austerity protests were sweeping the country. Instead of responding to people’s needs and demands at a time of need, the government chose to clamp down on people’s right to hold peaceful public protests.

When the law came into force in 2015, backlash was swift. Tens of thousands of citizens held major demonstrations outside the Congress and other buildings in Madrid, often wearing blue gags or tape over their mouths to signify the chilling effect the law has on free speech. Criticism also came from the international human rights community. In February 2015, four United Nations Special Rapporteurs (on the right to peaceful assembly, on the promotion and protection of the right to freedom of expression, on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and on the situation of human rights defenders) issued a joint statement against the gag law, which they said "penalizes a wide range of actions and behaviors that are essential for the exercise of this fundamental right, thus sharply limiting its exercise" and "unnecessarily and disproportionately restricts basic freedoms such as the collective exercise of the right to freedom of opinion and expression in Spain."

Liberties member Rights International Spain (RIS) has also been very critical of the law, even from its inception as a draft law. RIS specifically, and non-exhaustively, points to restrictions on people's right to record the police, on public demonstrations, and on peaceful interruption of official acts as things that must be removed in order to protect people's rights.

What's wrong with the reform plan

The current administration appears intent to leave intact many of the law’s most problematic parts. The law against photographing or filming police officers was initially said to be on the chopping block, but now it appears likely to stay, at least in some form. There's no reason for it. Photographing or filming on-duty police officers is one of the best ways to hold those who abuse their power to account. And it makes no sense for a professional force that exists to protect the people would oppose measures that passively and peacefully improve accountability and transparency. Moreover, if someone were to misuse a picture of a police officer in a way that bring harm to that officer, legal mechanisms to punish the offender already existed prior to the gag law.

Other problematic parts that could stay include the ban on peaceful assemblies in front of the Congress or Senate while they're in session and the ban on spontaneous assemblies. Both prohibitions violate people's fundamental right to freedom of assembly. Parliament and other public buildings are exactly the places in front of which people should complain about their government. I wouldn't go to a shoe store to complain about the kebab that kept me up all night hugging the toilet. The state has an obligation to protect such demonstrations, even if they occur spontaneously. The United Nations Special Rapporteur on the right to assembly has recommended that in all states, spontaneous assemblies are explicitly "recognized in law."

Another problem with the gag law is that it penalizes, in an extremely vague way, interference with an official act, which includes everything from football matches to evictions. The law states:

"Acts of obstruction intended to prevent any authority, public employee or official corporation from legitimately exercising its functions, complying with or enforcing administrative or judicial agreements or decisions, provided that they occur outside the legally established procedures and do not constitute a crime."

But what constitutes "acts of obstruction"? The law doesn't say, leaving the police way too much power to act and make judgments at their discretion. This means that it is often applied in ways that penalize completely peaceful and legitimate conduct in a democratic society. And it's curious that this prohibition exists at all – what value does it protect? The sanctity of the Copa del Rey?

For all these offenses and more, the gag law metes out absurd fines. Using data from the Interior Ministry, Amnesty International has calculated that the state has arrested an average of 80 people each day under the law, and made at least €25 million from resulting fines. It’s actually mildly surprising that this number is so low given the staggering sizes of penalties in the law: between €30,000 and €600,000 for participating in protest that wasn't previously authorized; between €600 and €300,000 for trying to stop an eviction; between €600 and €300,000 for interrupting a public event; up to €30,000 for showing a “lack of respect” to police officers. These figures aren’t just harsh, they’re cruel.

There's still time

It's not too late for the government to listen to citizens and rights advocates and implement reforms that actually do improve the human rights situation in Spain. There is no question that the gag law has been an abject failure, whether for the cynical purpose of silencing critical voices or in making citizens more secure.

"Although the law should have never been adopted in the first place and therefore should now be derogated, this reform process of the Law on Citizen Security is a good opportunity for the legislative power to ensure compliance with international norms on freedom of expression and freedom of peaceful assembly," Lydia Vicente, the director of Rights International Spain, said.

Indeed, if legislators implement the recommendations of RIS, they will help safeguard fundamental rights in the country without sacrificing public safety whatsoever.

It's not too late to raise our voices and change the path of the reform.

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