Communication Law in Spain

Sources of International Communication Law in Spain

Spain’s Government

Article 1 of Spain’s 1978 constitution establishes a parliamentary monarchy in Spain, dividing power among three branches of government: the Legislature, the Executive, and the Judiciary. The head of State is the Crown, currently King Felipe VI, who serves as the highest representative of Spain in international relations. Legislative power is vested in the Cortes Generales, which is composed of two houses: the Congress of Deputies and the Senate. The Executive branch, also called "The Government," is led by the Prime Minister. The Prime Minister’s official title is the Presidente del Gobierno (President of the Government), but because Spain is a Parliamentary Monarchy, the role functions as a Prime Minister, rather than a traditional President.

The Tribunal Supremo (Supreme Court) is the highest judicial body in Spain, except in cases concerning the Constitution. The Tribunal Constitucional (Constitutional Court) is the supreme interpreter of Spain’s Constitution and is composed of 12 justices. Finally, Spain is divided into 17 Autonomous Communities and two Autonomous Cities, each with their own legislative, political, and cultural powers within their respective region, as long as they adhere to the constitution, enabling them to adopt their own statutes and official languages.

Spain’s communication laws are created first through its Constitution and then by its laws on telecommunication and audiovisual communication. Many of Spain’s laws implement European Union directives, such as the Digital Services Act (DSA) and the General Data Protection Regulation (GDPR). Spain protects the rights created in these laws through the Ministry for Digital Transformation and the Civil Service, the National Commission for Markets and Competition (CNMC), and the Data Protection Agency (AEPD).

National Sources of Communications Law in Spain

Spain’s constitution protects classical communication rights, including the freedom to spread ideas and opinions through words, writings, or other means.

Article 20 of the Constitution creates “the right to freely express and spread thoughts, ideas, and opinions through words, in writing or by any other means of reproduction.” Even further, Article 20 protects “the right to literary, artistic, scientific and technical . . . creation, the right to academic freedom, [and] the right to freely communicate or receive truthful information by any means of dissemination whatsoever.” It is important to note that the right to receive and communicate information is limited by the requirement that the information be truthful. Article 20 also prohibits the aforementioned rights from being restricted by “any form of prior censorship” and declares that “[t]he law shall regulate the organization and parliamentary control of the mass communication means under the control of the State and . . . guarantee access to such means by the significant social and political groups” to respect pluralism in society. While Article 20 enumerates many important communication rights, it expressly limits such rights in respect to the “right of honor, to privacy, to the own image and to the protection of youth and childhood.”

Article 18 guarantees the right to honor, personal and family privacy, and to the own image. Additionally, the “[s]ecrecy of communications is guaranteed,” especially regarding telegraphic, postal, and telephonic communications, unless disclosure is necessary by a court order. Lastly, Article 18 declares that “[t]he law shall restrict the use of data processing in order to guarantee the honor and personal and family privacy of citizens and the full exercise of their rights.”

A distinct feature of Spain’s constitution is Article 10, which provides that the “[p]rovisions relating to the fundamental rights and liberties recognized by the Constitution shall be construed in conformity with the Universal Declaration of Human Rights and international treaties and agreements thereon ratified by Spain.” This article ensures that the scope of Spain’s communication rights is not limited domestically, but understood according to international norms and conventions.

National Communication Infrastructure and Laws

Spain’s Ministry for Digital Transformation and the Civil Service is the central governmental department responsible for implementing The Government’s policy on telecommunications. The Ministry is divided into three bodies. One of these bodies, the State Secretariat for Telecommunications and Digital Infrastructures, develops and implements policies to boost the telecommunications sector and communication infrastructure. For example, the Secretariat developed the General Telecommunications Law (Law 11/2022), which guarantees 10 Mbps of internet speed and removes legal barriers to speed up the rollout of 5G service in Spain.

The CNMC promotes and maintains effective competition in Spanish markets and protects consumer and business interests. The CNMC monitors compliance with the General Law of Audiovisual Communication (Law 13/2022). Law 13/2022 requires, among other things, high-profile users (influencers) to register their accounts with the State, websites to implement age verification systems, and streaming services to ensure that 30% of their catalog is composed of European works. The CNMC also coordinates the implementation of the EU DSA to ensure service providers protect user rights. The DSA gives users the right to know why a platform banned them or deleted their post, to have a non-profiled feed on the platform, and bans advertisements based on sensitive information.

The AEPD safeguards the data and privacy of Spanish citizens. It does so by enforcing the Organic Law on the Protection of Personal Data and the Guarantee of Digital Rights (Law 3/2018), which is an adaptation of the EU GDPR into Spanish law. Through Law 3/2018, the AEPD protects, among others, the right to access, the right to erasure, and the right to information.

Regional Sources of Communications Law

Spain’s communication rights framework is deeply entrenched in the greater European human rights system. In 1979, only a few months after the Spanish Constitution was ratified, Spain ratified the European Convention on Human Rights, demonstrating the inspiration that the Spanish Constitution draws from the Convention. The Convention recognizes the right to respect for private and family life, the right to freedom of expression, and the right to hold opinions and receive and impart information and ideas. As a member state of the Council of Europe, Spain is subject to the jurisdiction of the European Court of Human Rights (ECtHR), which enforces the rights recognized under the Convention. This means that complaints against Spain alleging violations of rights recognized under the Convention can be brought to the ECtHR, but only after all domestic legal avenues have been exhausted. Additionally, the ECtHR provides interpretive authority to Spain’s national courts when assessing the proportionality and necessity of communication regulations.

Spain is also bound by the European Union Charter of Fundamental Rights. Like the Convention, the Charter guarantees many of the same rights that are protected by Spain's constitution. For example, the Charter guarantees the right to respect for private and family life (Article 7), protection of personal data (Article 8), freedom of thought and conscience (Article 10), and freedom of expression and information (Article 11). However, the Charter is typically more explicit about certain rights. For example, the Charter enumerates workers’ right to information within the undertaking (Article 27) and the right to access documents (Article 42), while Spain’s constitution does not. Spain is also subject to the jurisdiction of the Court of Justice of the European Union (CJEU). Unlike the ECtHR, the CJEU’s jurisdiction only extends to cases in which Spanish authorities implemented European Union law.

International Sources of Communications Law

As a member state of the United Nations, Spain is committed to the Universal Declaration of Human Rights and, as previously discussed, gives the Declaration interpretative authority under Article 10 of the Spanish Constitution. The Declaration guarantees, among others, the right to privacy and freedom of thought, conscience, opinion, and expression.

In 1977, Spain ratified the International Covenant on Civil and Political Rights (ICCPR). The ICCPR protects similar rights to the European Convention and Charter. Specifically, the ICCPR guarantees the right to “hold opinions without interference” and “the right to freedom of expression,” which includes freedom to “seek, receive and impart information and ideas of all kinds.” Importantly, Spain ratified the First Optional Protocol to the ICCPR in 1985. The Optional Protocol establishes a complaint mechanism for the ICCPR, enabling complaints to be submitted directly to the UN Human Rights Committee after all domestic legal avenues have been exhausted.

Spain also ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1977. The ICESCR protects cultural life and access to information, including the right to enjoy scientific progress. Spain ratified the Optional Protocol to the ICESCR in 2010, which, like the Optional Protocol to the ICCPR, creates an oversight mechanism allowing complaints to be brought directly to the UN Human Rights Committee after the exhaustion of domestic legal avenues.

Principles of Communication Law and the Media in Spain

The two main bodies influencing the means of communication in Spain are the State Secretariat for Telecommunications and Digital Infrastructures and the National Commission for Markets and Competition (CNMC). The Secretariat aims to support the telecommunications sector by improving connectivity and increasing infrastructure deployment in Spain. The CNMC’s mission is to promote the proper functioning of Spanish markets in the interest of consumers and businesses.

Communication Infrastructure

The Secretariat achieves its purpose through the General Telecommunications Law (Law 11/2022). Law 11/2022 provides the essential definitions and parameters for Spain’s telecommunication infrastructure.

Article 85 of Law 11/2022 specifically tackles the issue of spectrum scarcity–the limited availability of radio spectrum frequencies compared to the high demand for frequencies–by declaring that “[t]he radio spectrum is a public domain asset, the ownership and administration of which belong to the State.” By defining the radio spectrum as a public domain asset, the Spanish government retains complete control over spectrum allocation, enabling the government to ensure equal distribution in the market. Article 85 clarifies that State administration of the radio spectrum is carried out according to the policy approaches of the European Union and takes into account freedom of expression, consumer rights, and cultural rights, among other things. Specifically, Article 85.3 declares that the principles of effective and efficient use, service neutrality, and promotion of competition apply to the administration of the radio spectrum.

Article 44 prevents bottlenecks–private property owners preventing public communication infrastructure from being built on their property–by granting telecommunication operators the right to occupy private property when necessary to implement a public network and no other viable alternatives exist in the area. This process is done either through a compulsory purchase or compulsory easement of the property owner's land. Additionally, Article 45 grants the same right to network operators for land in the public domain.

Article 37 defines “universal service” as the “set of services whose provision is guaranteed to all consumers regardless of their geographical location.” Article 37 sets the minimum broadband internet speed for universal services at 10 Mbps. However, Spain published the Digital Infrastructure and Connectivity Plan and the Strategy for the promotion of 5G technology, which outlines actions to provide the entire population with 100 Mbps of access speed. Through Article 37’s definition of universal service, Spain ensures that all of its citizens will have access to the internet. In fact, in 2020, 84% of the population already had access speeds of 100 Mbps. Lastly, Article 38 mandates that universal service must be affordable to ensure that consumers with low income or special social needs have access.

Communication Content

The CNMC achieves its purpose through enforcing the General Audiovisual Communication law (Law 13/2022). Law 13/2022 regulates traffic on the telecommunication infrastructure created by Law 11/2022, including the content and platforms operating on the infrastructure.

Article 94 of Law 13/2022 broadens the definition of audiovisual communication service providers to include “users of special relevance” (influencers). By doing so, Article 94 requires influencers on audiovisual platforms to comply with Articles 4, 6, 7.1, and 10 of Law 13/2022, among other provisions. According to these Articles, influencer content must respect human dignity, not incite violence or discrimination, be free from stereotypes of people with disabilities, and adopt measures to promote media literacy skills. Article 94 also requires influencers to register with the State Registry of Audiovisual Communication Service Providers. In sum, Article 94 recognizes individual influencers, who may only post content through their smartphones, as means of communication with the same impact as traditional media sources, and therefore requires them to adhere to similar legal responsibilities as traditional media sources.

Article 122 prohibits advertisements from promoting discrimination and using the images of women in a degrading or discriminatory manner to prevent violations of human dignity. Even further, Article 122 prohibits the use of covert and subliminal advertising that utilizes techniques consumers cannot consciously perceive. Article 123 sets restrictions on tobacco, pharmaceutical, and alcohol advertisements, including banning alcohol advertisements that target or depict minors drinking. These provisions regulate the content of commercial audiovisual communications allowed in Spain to prevent surreptitious and potentially immoral communications from reaching citizens.

Article 1 of the Constitution declares that the law must advocate for political pluralism, and Article 20 further requires that laws regulating communications media respect pluralism. Law 13/2022 pursues Constitutional pluralism by requiring audiovisual communication service providers to promote pluralism in Article 5. Law 13/2022 also requires TV providers to reserve at least 51% of their broadcasting for European works and streaming platforms to reserve at least 30% of their catalog for European works, of which 50% must be in Spanish or another co-official language. Together, these provisions ensure Constitutional pluralism by reserving space for a diversity of content to be published on audiovisual communication platforms.

Censorship and Violent Content

Historical background

From 1939 to 1975, Spain was ruled by an authoritarian dictator, Francisco Franco. During his regime, Franco installed a one-party system, enforcing his will through extreme oppression and censorship of civil liberties. Speech, media, and association rights were heavily restricted to suppress Franco’s opposition. Franco organized military tribunals to convict those who opposed him, imprisoning thousands and sentencing many Spaniards to death. Toward the end of Franco’s regime, his control over Spain started to relax. Strikes and protests became more frequent, and press censorship and police control decreased. After Franco died in 1975, King Juan Carlos I succeeded him. Although Franco appointed him, King Juan Carlos immediately pushed for reform by legalizing political parties and eventually holding democratic elections in 1977.

Spain’s Citizen Security Law (“Gag Law”)

In 2015, Spain passed the Organic Law on Citizen Security (Ley Orgánica 4/2015, de 30 de marzo, de protección de la seguridad ciudadana). The Law comprehensively updates public safety regulations in Spain and aims to maintain public order through protecting persons and property. Since its inception, the Law was criticized for restricting speech and press rights, leading it to be colloquially called the “Gag Law.”

The Gag Law regulates a wide range of areas, including public gatherings, filming the police, public waterways, and drug possession. Offenses are classified into three categories: minor (Article 37), serious (Article 36), and very serious (Article 35). Article 39 imposes €100 to €600 in fines for minor offenses, €601 to €30,000 in fines for serious offenses, and €30,001 to €600,000 in fines for very serious offenses. These administrative fines are handed out by Spanish security forces (the police) under the Ministry of the Interior’s command. The most important, and often most controversial offenses under the Gag Law include:

• Article 37.1 (€100 – €600): holding meetings in places of public transit without prior notice to relevant government authorities.
• Article 37.4 (€100 – €600): disrespect directed at police officers in the performance of their duties.
• Article 36.1 (€601 – €30,000): disturbing public safety at public events or gatherings attended by numerous people.
• Article 36.2 (€601 – €30,000): serious disturbances to public safety occurring at demonstrations in front of the headquarters of the Congress of Deputies, the Senate, and the legislative assemblies of the autonomous communities, even if they are not meeting.
• Article 36.3 (€601 – €30,000): causing disturbances in public roads, spaces, or establishments when doing so causes a serious alteration of public safety.
• Article 36.6 (€601 – €30,000): disobedience or resistance to authorities exercising their duties and refusal to identify oneself when required by authorities.
• Article 36.23 (€601 – €30,000): the unauthorized use of images or personal or professional data of authorities and police that may endanger their personal or family safety, with respect to the fundamental right to information.
• Article 35.1 (€30,001 – €600,000): unreported or prohibited meetings or demonstrations in or near public infrastructure or facilities that provide basic services to the community, as well as intrusion onto their premises, when creating a risk to the life or physical integrity of persons

The Gag law also creates a presumption of officer validity under Article 52. This presumption means that an alleged offender has the burden of disproving an officer’s recitation of the events to contest the validity of the fine during administrative proceedings. The administration of fines is to be governed by the principle of proportionality, and the Gag Law’s provisions are to be interpreted in accordance with freedoms of expression, assembly, information, and association. Between 2015 and 2020, around 400,000 fines were administered for protest and press-related activities.

Challenges to the Gag Law

In 2020, Article 36.23 was challenged for being unconstitutionally vague and for placing prior censorship on journalists. Though the Court made several rulings limiting the scope of Article 36.23, its most important holding was with respect to the term “unauthorized.” The Court held that the term “unauthorized” in Article 36.23 implied that prior authorization was required for individuals to capture images, namely the press, constituting prior censorship prohibited by the Constitution. Thus, the Court declared that "unauthorized,” as used in Article 36.23, was unconstitutional.

Some challenges have made their way to the ECtHR. In 2018, the Court held that a man’s sanction under the Gag Law for slandering police officers was a violation of his freedom of speech rights under Article 10 of the European Convention on Human Rights. The Court found that punishing the man’s description of police action as torture, after officers pulled him away from a sit-in protest using a rope, would create a chilling effect on freedom of expression.

Spain’s Penal Code

Spain’s penal code (Law 10/1995) makes it a crime to publicly praise or justify terrorism (Article 578), seriously insult, slander, or threaten state institutions (Article 504), and slander, defame, or use images of the Crown in a way that may damage its prestige (Article 491).

In 2023, the ECtHR upheld rapper Pablo Hasél’s conviction under the penal code for public praise of terrorism, insult against the Crown, misuse of the King’s image, and insult against State institutions. Hasél was convicted for several tweets he posted supporting convicted members of a terrorist group, GRAPO, and a song he created about King Emeritus Juan Carlos I of Spain. Hasél also posted a video in which he accused the King of “spending money on ‘binges and whores’, of being a drunkard, a ‘mafia boss’ and a ‘stinking chieftain’, of being ‘useful to his [drug] dealer and the owner of the whorehouse’, and of colluding with (Antonio) Tejero (leader of the failed coup in 1981).” The ECtHR found that Hasél’s conviction and prison sentence were proportional to the legitimate aim pursued–national security and public safety under Article 10 of the European Convention on Human Rights.

Truth, Honor and Tolerance

Historical Memory Law

In 2007, Spain enacted Law 52/2007, a historical memory law. The Historical Memory Act declares that it is time for Spanish democracy to honor and reclaim those who suffered injustices and grievances perpetrated by the Spanish Civil War and Francoism. The Law’s stated purpose is to recognize and expand the rights of those who suffered persecution or violence during the Civil War and Dictatorship, and to promote their moral reparation and recovery of their personal and family history. To do so, the Law lays the foundation for the government to promote policies aimed at understanding and creating a collective democratic memory.

Law 52/2007 achieves its goals by declaring the unjustness and illegitimacy of military tribunal punishments and the exile of Spaniards during the Civil War and Dictatorship. Even further, the Law creates a personal right to reparation and recognition for such Spaniards. The Law also expands previously offered social assistance and monetary reparations for those affected by the Civil War and Dictatorship. Articles 11 through 13 create a government system to process requests for and investigate the location and identity of missing persons from the Civil War and Dictatorship. Article 15 commands public authorities to remove public symbols and monuments that glorify the Civil War and Dictatorship, including insignias, plaques, and shields. Finally, Article 20 of the Historical Memory Act establishes the Documentary Center for Historical Memory in Salamanca, Spain, to maintain an archive and promote research on the Civil War, Dictatorship, and the guerrilla resistance. Practically, Spain’s historical memory law creates a state-sponsored history and truth of the Civil War and Francoism, recognizing rights for individuals who were directly or indirectly persecuted.  

Recognition and Protection of Terrorism Victims Law

Law 29/2011 creates a legal framework to compensate, benefit, and aid victims of acts of terrorism, to recognize and protect them and their families. The law is founded on the values of memory, dignity, justice, and truth. Memory serves to safeguard and maintain victims' social and political recognition. Dignity symbolizes the victims' defense of the democratic rule of law. Justice serves to bring the victims compensation and condemn the terrorists. Truth serves to highlight the violation of human rights committed by acts of terrorism. Law 29/2011 defines terrorism as acts carried out by individuals belonging to criminal organizations or groups whose purpose or objective is to undermine the constitutional order or seriously disrupt public peace.

To promote and achieve these principles, Article 14 of Law 29/2011 grants victims of terrorism the right to receive compensation from the State in the form of the amount of civil liability imposed on the convicted terrorist(s). Additionally, Annex I of the Law creates a compensation table for physical and psychological damage suffered by victims. Compensation, paid by the government, ranges from €75,000 to €500,000 depending on the severity of the damage. Articles 42 through 46 provide data protection and privacy for victims by making it unlawful to advertise images of victims in a derogatory, humiliating, sensationalist, or for-profit manner, and by directing the media to promote the protection and appropriate use of victims' images. These privacy protections serve to dignify victims. Article 52 authorizes the government to recognize victims and their families with the rank of Grand Cross (Gran Cruz), Commander (Encomienda), or Badge (Insignia)–honorary civil decorations similar to military decorations–to further honor and dignify victims. Articles 56 and 61 direct the government to erect symbols and monuments to promote the dignity and honor of victims, and to remove those that glorify terrorism. Article 57 establishes the National Center for the Memory of Victims of Terrorism, which aims to build the collective memory of terrorism victims. Finally, Article 60 creates the national Day of Remembrance and Tribute to the Victims of Terrorism on June 27, with a European counterpart on May 11.

This robust law demonstrates Spain’s commitment to honoring, dignifying, and preserving the memory of terrorism victims.

Honor, Privacy and One’s Own Image

Although the Spanish Constitution provides the right to freedom of expression, it is limited by the rights to honor, personal and family privacy, and to one’s own image under Article 18. Spain’s penal code recognizes the limitation on expressive rights by creating an offense for slander under Article 206 and defamation under Article 209.

Article 205 of the penal code defines slander as accusing someone of a criminal offense while knowing that the accusation is false or recklessly disregarding the truth. Slander is punished with six months to two years of imprisonment if disseminated with publicity. However, someone accused of slander is exempt from punishment if they prove the truth of the criminal deed they alleged.

Article 208 of the penal code defines defamation as a deed or expression that harms another person's dignity, thereby damaging their reputation or attacking their self-esteem. Only defamation that, in context, is considered serious by the public constitutes a criminal offense. Severe defamation disseminated with publicity is punished by a fine of six to fourteen months. Like slander, someone accused of defamation is exempt from liability by proving the truth of the statement asserted, but only if the statement was directed against civil servants concerning the exercise of their official duties.

For both slander and defamation, assertions are considered to be disseminated with publicity if they were propagated by use of the printing press, radio, or other similarly effective means. Presumably, the internet and social media could constitute similarly effective means if the assertion was disseminated widely enough.

Cultural and Religious Expressions

Introduction

Article 14 of the Spanish Constitution establishes that Spaniards may not, in any way, be discriminated against on account of their religion. Article 16 further guarantees the freedom of ideology, religion, and worship for individuals and groups as fundamental rights, prohibiting their restriction except as necessary to maintain public order. Article 16 also protects individuals from being compelled to make statements regarding their religion, beliefs, or ideologies. Lastly, Article 16 declares that there is no State religion in Spain, establishing a non-confessional state. However, public authorities must take religious beliefs in Spain into account and maintain cooperation with the Catholic Church and other religions. Article 16’s requirement that public authorities take religious beliefs into account shifted Spain from a state of indifference regarding religious matters under previous drafts of the 1978 Constitution to active cooperation and recognition of religion as a social fact in Spanish society.

Article 7 of Ley Orgánica 7/1980, de 5 de julio, de Libertad Religiosa (Organic Law on Religious Liberties), clarifies that to cooperate with religions in Spain, the State shall establish appropriate cooperation agreements and conventions with churches, denominations, and religious communities that are enrolled in the Ministry of Justice’s Registry of Religious Entities and are well-established due to their scope and number of believers in Spain. The Parliament must approve such agreements. A Religious Entity’s enrollment in the Registry confers legal status, granting benefits such as autonomy to establish organizational rules, internal regulations, personnel procedures, and clauses safeguarding their religious identity and character.

The Catholic Church

Although there is no official religion in Spain, the Catholic Church enjoys many benefits compared to other religions due to its deep roots in the country’s history and tradition. According to a 2015 resolution, the Catholic Church does not have to register its past and future property the same way other religious entities do in the Religious Entity Registry. Instead, the Catholic Church’s property, such as dioceses and parishes, enjoys legal benefits as soon as they are recognized as canonical legal entities by competent ecclesiastical authorities, like a Bishop or the Holy See.

Religion in Education

In 1979, Spain signed an agreement with the Holy See on education and cultural affairs to uphold religious freedom and equality in Spain. Article 1 of the agreement between Spain and the Holy See recognizes the parental rights regarding the moral and religious education of their children, and provides that public schools must be respectful of Christian ethics. Article 2 requires that the Catholic religion be offered as a course similar to other fundamental disciplines. And while it is not required that students take the course, they are guaranteed the right to take the course should they choose. Article 2’s requirements apply to Preschool, Basic General Education, and Unified and Multipurpose Baccalaureate and Vocational Training Degrees. The Diocesan Bishop, a member of the Catholic Church, designates which teachers are qualified to provide the religious instruction. Article 4 establishes that the teaching of Catholic doctrine in universities is voluntary for students, and Article 5 guarantees that the Catholic Church can organize voluntary religious instruction at public universities using its own resources.

Religious Expression

Articles 239 and 567 of Decreto 3096/1973, Spain’s penal code before the end of Franco’s regime, punished anyone who blasphemed with writing, words, or acts. These blasphemy articles made it a criminal offense to disrespect religion. In 1988, Spain decriminalized blasphemy by passing Organic Law 5/1988, which repealed Articles 239, 567.1, and 567.3 of Decreto 3096/1973. Although blasphemy is now officially decriminalized, a similar law remains under Article 525 of Spain’s current penal code: offense to religious sentiments.

Articles 522 to 525 of Spain’s Penal Code (Ley Orgánica 10/1995) punish numerous acts intended to intimidate or offend religion. Most importantly, Article 525 punishes anyone who offends the feelings of members of religious groups or publicly disparages their dogmas, beliefs, rites, or ceremonies. Article 525 also makes it a violation to do the same to atheists. Violations are punishable with 8 to 12 months in prison. Although Article 525 is not a blasphemy law per se, by making it a crime to offend religious groups or publicly insult their beliefs, it is in effect a continuation of Spain’s previously repealed blasphemy law.

Criminalizing insults that hurt the feelings of religious communities is no trivial matter, and so Article 525 of Spain's Penal Code has come under scrutiny in recent years. Currently, there is proposed legislation to repeal the law to better balance freedom of speech against religious rights. Patxi Lopez, a parliamentary spokesperson, claims that Article 525 “is constantly used by extremist and fundamentalist organisations to persecute artists, activists (and) elected representatives, subjecting them to costly criminal proceedings.” Criticisms of Article 525 may also be related to the decline of Catholicism and religious practice in general in Spain. Others support the protection that Article 525 provides. When the old blasphemy law was under consideration to be repealed, some supported a new provision that shifted from protecting religion as an institution, like the old blasphemy law did, to protecting an individual’s right to religious freedom and expression, like Article 525. Today, supporters of Article 525 echo the same sentiments, arguing that the law works to prevent hate speech and protect religious observers from being subjected to psychological coercion or intimidation.

Although Spain’s Constitutional Court has not directly ruled on how to apply Article 525, it has continuously held the right to freedom of expression in high regard. In STC 9/2007, the Court considered whether a Deputy Mayor’s statements about a municipal engineer violated the engineer's right to honor under the Constitution. The Court held that the Deputy Mayor’s statements were protected by the freedom of expression and did not violate the engineer’s right to honor. In its reasoning, the Court balanced the interests between freedom of expression and the right to honor. The Court explained that freedom of expression is of particular importance because it is a necessary condition for the exercise of other rights in a democratic system, and that the right stands in a preferential position in Spain’s constitutional order. Though STC 9/2007 does not directly involve religious rights or Article 525, the high regard that the Court placed on the freedom of expression alludes to a narrow interpretation of Article 525 in which the importance of the right to freedom of expression outweighs the religious rights.

In 2008, the European Commission for Democracy Through Law (Venice Commission) published a report on the relationship between freedom of religion and freedom of expression. The Venice Commission found that measures to ensure respect for religious beliefs can pursue the protection of rights and freedoms of others and public order and safety in accordance with Article 10 of the ECHR. However, such measures must be construed to protect the specific beliefs held by individuals, rather than to protect a belief system from criticism. The Commission concluded that an offense for insult to religious feelings is “neither necessary nor desirable” without including the element of incitement to hatred in the offense. Even further, the Commission found that criminal sanctions for insult to religious feelings are inappropriate.

Though article 525 of Spain’s penal code requires the intent to offend the feelings of religious denomination members, it does not rise to the level of incitement to hatred as outlined in the Venice Commission’s report. Even further, article 525 remains a criminal offense in direct contradiction to the Commission’s conclusion that a criminal punishment in this situation is unnecessary.

Privacy and Data Protection

Introduction

Article 18 of Spain’s Constitution establishes the right to personal and family privacy, secrecy of communications, and declares that the law shall limit the use of data processing to guarantee the rights to personal and family privacy. Although written in 1978, Article 18 establishes the foundation for privacy and data protection rights in Spain. To refine these rights in accordance with the digital age, Spain passed Ley Orgánica 3/2018 de Protección de Datos Personales y garantía de los derechos digitales (Organic Law on the Protection of Personal Data and the guarantee of digital rights). Organic Law 3/2018 implements the European Union’s General Data Protection Regulation (GDPR), which aims to unify data privacy rights in the EU and even provides further protection in certain circumstances.

Organic Law 3/2018 goes beyond the GDPR’s requirements in significant ways, including recognizing new digital rights to: data of deceased persons accessed by their family (Article 3); net neutrality (Article 80); universal access to the internet (Article 81); digital security (Article 82); digital education (Article 83); protection of minors (Article 84); update information in digital media (Article 86); be forgotten in internet searches (Article 93); be forgotten in social networking services (Article 94); and a digital will (Article 96). The Agencia Española de Protección de Datos (Spanish Data Protection Agency (AEPD)) is the government entity in charge of enforcing these digital rights and readily provides information related to the rights on its website.

Overall, Organic Law 3/2018, in conjunction with the GDPR, greatly expands digital rights compared to Article 18 of the Spanish Constitution, and provides concrete ways in which these rights can be exercised in today’s digital age.

State Secrets

Ley 9/1968 sobre secretos oficiales (Law on official secrets), passed during Franco’s dictatorship, creates Spain’s framework for state secrets and classified information. Law 9/1968 has come under scrutiny due to the fact that it is outdated and that it doesn’t include a declassification time frame provision, meaning information remains classified forever unless expressly declassified by a governmental body.

There have been ongoing reform efforts to Law 9/1968, but they have repeatedly stalled. The Spanish government approved a draft to replace Law 9/1968 in August 2022. However, the text never saw the light of day because it wasn't processed in Congress and lapsed with the July 2023 elections. As of early 2026, a new Classified Information Bill has been approved by the Council of Ministers and sent to parliament, but remains stalled in Congress.

Breaches of Privacy

As originally enacted, paragraph two of Article 58 bis of Organic Law 3/2018 provided that political parties could use personal data obtained from publicly accessible sources, such as web pages, to carry out political activities during an election period. This provision was declared unconstitutional by Spain’s Constitutional Court in 2019. The Court found that Organic Law 3/2018 did not establish adequate safeguards regarding the collection of personal data relating to political opinions. Instead of creating specific measures to safeguard the interests of those whose data was being collected, Organic Law 3/2018 only implicitly referred to general safeguards, which was not enough protection under the GDPR for data on political opinions. Moreover, the Court found that the lack of specific safeguards in Organic Law 3/2018 constituted an interference with the fundamental right to protection of personal data, so much so that it was potentially a direct intrusion into the core content of the right.

Another privacy intrusion involves a spyware called Pegasus that was created by NSO Group for government use, including in Spain. Pegasus is a spyware that allows governments to breach mobile phones and extract data processed by the device, including text messages, phone calls, passwords, locations, and microphone and camera recordings. A 2022 investigation revealed that the Pegasus software breached numerous phones of senior Spanish ministers, including the Prime Minister, Defense Minister, Interior Minister, and Agricultural Minister. Due to the involvement of EU member states and the software’s use against Members of the European Parliament, the European Parliament set out to create standards for the use of spyware to prevent any further breaches of data privacy.

Regarding Spain, the European Parliament found that its regulatory framework was compliant with data privacy protections, but could use some reforms. The European Parliament found that judicial authorization for the use of spyware was properly applied, but that judicial oversight could be improved, given the improvements in surveillance technology. The European Parliament also made note of Law 9/1968, which, in this context, automatically classifies the activities and information gathered by Spain’s National Intelligence Center (CNI) under Law 11/2002, which created the CNI. The European Parliament noted that the automatic classification of CNI’s activities, including the use of the Pegasus software, under Law 9/1968 prevented public scrutiny and effective redress because Law 9/1968 doesn’t provide a timeframe for the expiration of classified information.

Spain’s amendment to criminal procedure in Law 13/2015 introduced procedural safeguards regarding the remote search of computers and other electronics. Article 588 of Law 13/2015 requires judicial authorization for remote search of devices and outlines the specific offenses for which such searches may be authorized. Article 588 also regulates the use of information obtained through remote searches, the duration that the information will be classified, and the destruction of the information from government records. Though Law 13/2015 meets some of the European Parliament's recommendations on the use of spyware, the European Parliament noted that it does not stipulate a duty to notify individuals that their computer was remotely searched, after the search has been completed.

The Right to be Forgotten

In the landmark case Google Spain v. AEPD, the Court of Justice of the European Union (CJEU) established the right to be forgotten. In 2010, a Spanish national filed a complaint with the AEPD against Google Spain, requesting that Google remove or conceal personal data relating to him so that it would no longer appear in a Google search result. The Spanish national brought the case after discovering that when his name was searched on Google, a link to a newspaper appeared that discussed his real-estate auction related to attachment proceedings to recover his social security debts. The Spanish national wanted the newspaper link removed from the Google search and argued that because the attachment proceedings had been resolved for a number of years, they were irrelevant information that did not need to appear on a Google search of his name. The AEPD ruled in favor of the Spanish national and requested that Google withdraw the data so that it was no longer accessible in the future. Google Spain brought suit before Spain’s high court, the Audiencia Nacional, which then referred the case to the CJEU.

The CJEU first found that search engine operators, like Google, can be found liable to affect an individual’s fundamental rights to privacy, even when the search engine is simply providing links to web pages rather than creating and publishing the personal data itself. The CJEU ultimately concluded that, in specific circumstances, an individual has the right to request that his personal data be removed from the results listed by a search of his name on a search engine. However, the CJEU qualified this right to situations where the controller of the data, in this case Google, no longer needs the data for the purposes for which it was collected or lawfully processed, or if the individual withdraws consent to his data collection. Thus, Google Spain v. AEPD established the right to be forgotten, albeit only in narrow circumstances. Articles 93 and 94 of Organic Law 3/2018 codify the right to be forgotten in internet searches and in social networking services in Spain. Exercising the right under both articles is limited to situations where the individual's data privacy rights outweigh the public’s interest in viewing information or data.

Right to Bodily, Spiritual, & Digital Identity

Introduction

Article 10.1 of the Spanish Constitution provides the foundation for the right to identity by creating a fundamental right to “the free development of the personality.”

For example, in STC 99/2019, Spain’s Constitutional Court considered the constitutionality of Law 3/2007’s requirement that a person be of legal age (18 years old) to request a change to their legal name and sex in the Civil Registry. The Court ruled that the age restriction in Law 3/2007 was unconstitutional as applied to individuals under the age of 18. The Court reasoned that Law 3/2007 affects the right to the free development of personality under Article 10.1 of the Constitution because it enables individuals to make decisions about their identity. By only allowing individuals who are 18 years or older to change “an essential aspect of his/her identity” (name and sex), Law 3/2007 violated the right to the free development of personality under Article 10.1 of the Constitution for individuals under 18 years of age, and therefore, violated their right to shape their identity. The Court concluded that Law 3/2007 was unconstitutional as applied to minors who were mature enough and lived in a steady state of transsexuality because it prohibited their ability to exercise their right to identity. The Court’s holding in STC 99/2019 directly links the right to the free development of personality to the right to identity, thus establishing Article 10.1 of the Constitution as the foundation for the right to identity.

Alternatively, Article 15 of the Constitution provides the foundation for bodily identity by ensuring that everyone has the right to “physical and moral integrity.” Article 18 protects the external identity by ensuring the right to honor, personal and family privacy, and to one’s own image. Article 18.4 provides the foundation for digital identity by regulating the use of data processing to protect the right to honor and privacy. Finally, Article 16 protects spiritual identity by creating the right to freedom of religion, ideology, and worship.

Gender Identity

First, Law 13/2005 modifies Spain’s Civil Code to legalize same sex marriage. The legalization of same sex marriage serves to strengthen individual identity by protecting sexual orientation so that citizens who do not identify as heterosexual are afforded the same rights and duties as heterosexuals.

In 2023, Spain passed Law 4/2023 to promote and guarantee equality for lesbian, gay, trans, bisexual, and intersex people, as well as their families. This law effectively recognizes the LGBTI identity rights in Spain. To achieve its goal, Law 4/2023 regulates the rights and duties of natural and legal persons and provides measures to eliminate discrimination. Article 4 provides that public authorities must take all necessary measures to recognize and guarantee equal treatment and non-discrimination on the basis of sexual orientation and identity.

Importantly, Article 43 of Law 4/2023 allows individuals over the age of 16 to change their registered gender and name without a medical certification or diagnosis. Law 4/2023 grounds this ability in the principle of free development of personality under Article 10.1 of the Constitution and the fundamental right to privacy under Article 18.1 of the Constitution. By allowing individuals to more easily change their registered sex, Law 4/2023 aligns individuals’ gender and sexual identity with their legal identity.

In April 2025, the Council of Ministers approved Royal Decree 255/2025, which regulates both physical and digital copies of Spain’s National Identity Document (DNI). Through Royal Decree 255/2025, Spain established for the first time the ability to have the DNI on digital platforms, such as mobile phones. Shortly after Royal Decree 255/2025 was announced, individuals were able to forgo carrying physical copies of their DNI by using a digital version through the MiDNI application. The DNI is the only public and official document proving someone’s identity and personal details in Spain. The DNI includes information such as the individual’s name, birth date, and sex. Currently, the digital DNI enables individuals to verifiably identify themselves to public authorities by physically displaying the digital DNI through their phone, and in 12 months, both private and public sectors must adopt measures enabling individuals to prove their identity via the internet with the digital DNI.

So, not only is obtaining and using a legal identity easier through the digital DNI created by Royal Decree 255/2025, but so is changing your legal identity so that it aligns with your sexual identity under Article 43 of Law 4/2023.

Finally, Article 19 prohibits genital modification surgery for anyone under the age of 12, except when necessary to protect the individual’s health, and allows such surgeries for anyone between 12 and 17 years old only if the individual requested it and, due to their age and maturity, can give informed consent to the surgery. So, while Law 4/2023 recognizes and promotes LGBTI identities, certain practices are limited in respect to minors. Finally, Article 17, which bans conversion therapies intended to modify someone’s sexual orientation or identity, regardless of whether the individual consented to the therapy.

Abortion & Conscientious Objection

Organic Law 2/2010 regulating sexual and reproductive health and voluntary termination of pregnancies, states in its preamble that the development of sexuality and the capacity for procreation are directly linked to the free development of personality. Article 3 of Organic Law 2/2010 also promotes the right to freely chosen motherhood as one of the law’s guiding principles. In this light, Law 2/2010 provides clear regulations on the right to abortion to adequately guarantee women’s autonomy and the right to prenatal life. Generally, Law 2/2010 permits voluntary abortion if the pregnant woman is 16 years or older and the pregnancy is terminated within the first fourteen weeks of gestation. So, while Law 2/2010 protects women’s autonomy and identity to a certain extent, the state limits the right to this identity.

Importantly, Article 17.1 of Organic Law 2/2010 requires that all women who express an intention to receive a voluntary termination of their pregnancy be provided information from health care professionals regarding methods of termination, conditions for termination, and the accredited centers at which the termination can be performed. Even further, Article 20 ensures that patient confidentiality is guaranteed by private and public institutions that perform the operation, and Article 13 requires that the operation be carried out only with the express informed and written consent of the patient, except in special circumstances. Articles 14, 17.1, and 20 work together to ensure transparent, confidential, and unambiguous communications are provided to the patient so they can make an informed decision on whether they want to voluntarily terminate their pregnancy.

Conversely, Article 19 bis of Organic Law 2/2010 provides for the right to conscientious objection, allowing health care professionals to refuse or deny performing an abortion for reasons of conscience, provided that the refusal is clear. However, conscientious objectors can only object to performing the voluntary termination procedure itself, not the necessary treatment before and after the procedure. Article 19 ter also creates a conscientious objector register, communicating vital information to prospective patients early in their decision-making process. Conscientious objector rights raise concerns about a patient's right to access relevant medical information and counseling regarding abortion. Although Article 19 bis only permits objection to the medical procedure itself, it does not specify whether medical professionals can object to providing relevant information about voluntary terminations. However, Article 17.1's information requirement may overrule conscientious objector rights under Article 19 bis, but Organic Law 2/2010 does not make that clear. Therefore, Article 19 may provide a communication gap between patients and conscientious objectors.

Some conscientious objectors view referring patients to other doctors who would perform the procedure as active participation in the procedure itself, and thus object to referrals as well as performing the termination. But when a doctor objects to giving a referral, it creates a communication gap where patients are denied critical information regarding the health care options. Without receiving important information up front, the procedure could be delayed, causing patients emotional distress and potentially pushing them past the fourteen-week time frame.

Digital Identity

In 2021, Spain published the Charter of Digital Rights, a non-binding framework created to outline already existing fundamental rights and their place in the digital age. Article 2 establishes the right to digital identity and makes the right enforceable in the digital environment. Digital identity is determined by “the name and all other elements that make it up, pursuant to national, European and international law.” Even further, the Charter guarantees the right to manage one’s digital identity and that identity “may not be controlled, manipulated or appropriated by third parties against a person’s will.” The Charter also protects the right to pseudonymity (using false account names) in the digital environment under Article 4, codifying users' rights to shape their identity. However, the right to pseudonymity under Article 4 is limited by the State’s necessity to enable secure identity verification in appropriate circumstances under Article 2.

Though only a non-binding framework intended as a reference for future legislation, Spain’s Charter of Digital Rights provides a good insight into the future of Spain’s digital society and identity. Spain's Charter of Digital Rights has been seen as a proactive step towards modernizing individual rights in the digital age, and has even been used as a reference at the greater European level. Of note in the Charter are the rights to secrecy of communication and pseudonymity.

Right to Reject Information, Clothing, & Human Exhibitions

Commercial Communications

Law 34/2002 regulates service providers and e-commerce in Spain. The Law sets out to provide clear regulations and protections for consumers. Articles 20 to 22 of Law 34/2002 regulate the rights of service providers and recipients in relation to commercial communications. Article 20 requires that commercial communications and the identity of the sender be clearly identifiable. Article 20 also requires that information expressed in commercial communications is unambiguous, and prohibits commercial communications in which the sender’s identity is disguised. Next, Article 21 prohibits advertising or promotional communication by email or its equivalent without the express consent of the recipient. If such communications have been consented to, Article 21 further requires that each email contain a simple and free procedure for the recipient to opt out of the communications. Articles 20 and 21 thus establish a framework for recipients to easily identify commercial communications and exercise their right to reject receiving such information, particularly in their email inboxes.

Article 22 of Law 34/2002 details the recipient’s right to reject the information conveyed in commercial communications. Article 22 guarantees that the recipient may revoke their consent to receive commercial communications at any time by simply notifying the sender of the communication. Additionally, Article 22 allows service providers to collect data on the recipient only if the recipient has given their consent after being provided with completed and clear information on the data's use. Overall, Article 22 provides clear information on recipients’ right to reject commercial communications, especially in their email inboxes, and creates protections to enable recipients to exercise that right. When considered together, Articles 20, 21, and 22 provide a detailed framework regarding recipients' right to reject commercial communications. Through Articles 20 and 21, individuals or companies sending commercial communications must adequately label the communications so that the recipient is aware of their nature. And through Article 22, recipients are guaranteed the right to reject the commercial communications if they no longer wish to receive them.

Parental Controls

Law 13/2022 regulating general audiovisual communications creates parental control mechanisms that allow parents to exercise the right to reject information on behalf of their children. First, Article 98 of Law 13/2022 requires television audiovisual communications services to ensure that all broadcasts have an age rating that is clear and easily understandable. Even further, Article 99 requires television broadcast providers to provide viewers with unambiguous information about content that is potentially harmful for the physical, mental, or moral development of minors. Finally, Article 99 mandates that television broadcast providers have parental control mechanisms, enabling parents to exercise the right to reject information on behalf of their children. Articles 98 and 99 create a framework to both help parents easily identify what information is potentially harmful to their children and exercise their right to reject that information if they choose to.

Articles 88 and 89 of Law 13/2022 create a similar framework supporting the right to reject information on video-sharing services. Article 88 requires video-sharing service providers to take measures to protect minors from content that may harm their physical, mental, or moral development, similar to Article 99. Article 89 requires that video-sharing service providers facilitate parental control mechanisms to allow parents to reject such information that is harmful to their children. So, parents’ right to reject the information received by their minor children is protected for television services under Articles 98 and 99, and on streaming, social media, and other video-sharing platforms under Articles 88 and 89.

Clothing & Bodily Displays

Under Article 185 of the Spanish Penal Code (Organic Law 10/1995), acts of obscene exhibitionism in front of minors or people with “disabilities in need of special protection" are punishable by six months to one year in prison. By doing so, Article 185 protects minors' right to reject sexually explicit information. Similarly, Article 186 punishes the selling or distributing of pornographic material to minors with six months to one year in prison. Article 182 also punishes making a minor under sixteen years of age witness acts of a sexual nature with six months to two years in prison. All three of these articles seek to protect minors from sexually explicit content that may be harmful to their development. And although the articles do not place the right to reject the content in the minor’s hands, the government effectively exercises the right to reject for them by punishing individuals who expose the minors to the explicit or indecent content.

Article 185 of the penal code protects individual rights, not collective rights. However, scholars debate whether the specific interest protected by Article 185 is an individual’s sexual liberty or sexual indemnity. Sexual liberty is an individual’s right to exercise sexual activity freely, while sexual indemnity is an individual’s right to be free from sexual harm. If Article 185’s protection is in fact rooted in sexual indemnity, then it would support the negative liberty interest in the right to reject information – in this case, the right to reject unwanted sexual conduct. But, if Article 185 is rooted in sexual liberty, then it would not directly support the right to reject information and instead support the positive liberty interest in sexual expression.