Communications Law in Spain

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Communication Law in Spain

Introduction

Spain is a parliamentary constitutional monarchy. While the monarch serves as head of state, political power is exercised through a democratic parliamentary system led by a prime minister and the national legislature known as the Cortes Generales. Spain is also a highly decentralized state composed of seventeen Autonomous Communities, each with its own regional government and authority over areas such as culture, language policy, and public broadcasting. In addition to its domestic institutions, Spain operates within a broader European legal framework as a member of the European Union and a party to international human rights agreements such as the European Convention on Human Rights.

Modern debates over communication law in Spain are also deeply influenced by the country’s twentieth-century history. From 1939 until 1975 Spain was governed by the authoritarian dictatorship of General Francisco Franco, during which the state exercised strict control over political speech and media institutions. Following Franco’s death, Spain underwent a democratic transition that culminated in the adoption of the 1978 Constitution, which established modern protections for freedom of expression and democratic pluralism. These historical experiences continue to shape contemporary debates over speech, protest, and public memory in Spain.

Sources and Institutions Of Communication Law In Spain

National Sources and Institutions

Constitutional Foundations of Communication Law

The Spanish Constitution of 1978 is the supreme legal authority governing communication rights in Spain. Only a few provisions directly address communication, but they shape disputes involving the press, privacy, defamation, surveillance, and protest.

The first major provision is Article 20, which protects freedom of expression and information. It guarantees freedom of expression, creative and academic freedom, the right to communicate and receive truthful information, and the prohibition of prior censorship. This is the backbone of Spanish communication law.

But Article 20 is not a blank check. Article 20(4) makes clear that expression has limits when it collides with other constitutional rights. In other words, Spain builds speech protection and speech limits into the same constitutional design.

That leads to the second key provision: Article 18, which protects privacy, honor, and the secrecy of communications. Article 18 expressly protects the right to honor, personal and family privacy, personal image, and the secrecy of communications. These protections frequently arise in modern communication disputes. For example, in Spanish Constitutional Court decision STC 104/1986, the court examined whether a newspaper report accusing a businessman of misconduct violated his constitutional right to honor, emphasizing the need to balance expression with protection of reputation.

Another important principle in the Spanish constitutional system is the protection of the “essential content” of fundamental rights, often referred to as the núcleo esencial. Rooted in Article 10 and Section I on fundamental rights, this principle holds that certain core aspects of rights cannot be undermined by the state. The doctrine reflects Spain’s constitutional commitment to human dignity and the free development of personality. In practice, rights may be regulated but not restricted in ways that destroy their core substance. Rights such as expression, life, and physical integrity retain a protected core beyond ordinary political decision-making.

An interesting wrinkle in the Spanish Constitution is Article 10(2), often called the international interpretation clause. It requires that constitutional rights be interpreted in conformity with international human rights treaties ratified by Spain. That strengthens the influence of European and international human-rights standards inside Spain’s own constitutional system. For example, in Stern Taulats and Roura Capellera v. Spain (2018), the European Court of Human Rights ruled that Spain violated freedom of expression after protesters were convicted for burning photographs of the King during a political demonstration, illustrating how international courts shape constitutional speech protections.

Regulatory Authorities

Spain relies on regulatory authorities to implement and supervise communication law.

The National Commission on Markets and Competition (CNMC) oversees telecommunications and audiovisual markets in Spain, with a role that blends sector oversight with competition regulation.

The Spanish Data Protection Agency (AEPD) enforces the GDPR and Organic Law 3/2018, and it is one of the main places where “digital rights” become real—through guidance, enforcement, and sanctions.

The Ministry for Digital Transformation and Public Function plays a coordinating role for national telecommunications and digital policy, including the domestic implementation of EU digital regulation. The ministry also oversees the allocation of radio frequencies, a critical responsibility because the radio spectrum is a limited public resource used by mobile networks, television broadcasting, satellite communications, and other wireless technologies.

National Legislative Framework

Spain does not rely solely on the Constitution and international treaties to regulate communication. Spain can pass national legislation governing communication as long as it stays consistent with superior constitutional and supranational law.

The General Audiovisual Communication Law (Law 13/2022) regulates television, radio, and on-demand audiovisual services, including licensing, protection of minors, advertising standards, and media pluralism. It also functions as Spain’s main implementation of AVMSD requirements.

The General Telecommunications Law (Law 11/2022) regulates electronic communications networks and services, including spectrum allocation and operator licensing. Under Article 149.1.21 of the Constitution, telecommunications is an exclusive competence of the State. In other words, national control ensures consistent regulation of telecommunications across Spain’s 17 Autonomous Communities.

On privacy, Spain applies the EU’s General Data Protection Regulation (GDPR) and complements it through Organic Law 3/2018 (LOPDGDD), which regulates data processing and sets out digital rights in domestic law. This framework includes digital rights such as the “right to erasure” (“right to be forgotten”).

Finally, Organic Law 1/1982 on the Protection of Honor, Privacy, and Personal Image provides civil remedies when freedom of expression conflicts with personal dignity, basically, when speech unlawfully harms reputation or private life. This law operationalizes the protections in Article 18 in everyday disputes involving media reporting and personal reputation.

Regional (Autonomous Community) Regulation

The 17 Autonomous communities of Spain

Spain is a decentralized state composed of 17 Autonomous Communities. While telecommunications remains a national competence under Article 149, Autonomous Communities still influence communication in meaningful ways, especially through public broadcasting and language policy.

Autonomous Communities may create and regulate their own public broadcasting corporations. For example, Catalonia operates the Corporació Catalana de Mitjans Audiovisuals (CCMA) and the Basque Country operates EITB. These bodies operate under regional frameworks but still sit under national and EU rules that shape audiovisual services more generally.

Some regions also maintain audiovisual supervisory authorities. Catalonia, for example, has the Consell de l’Audiovisual de Catalunya (CAC), which oversees audiovisual services within the region and has a particular focus on standards tied to language and culture.

Regional governments also regulate language and cultural policy. Autonomous Communities with co-official languages may adopt measures that promote regional-language media and broadcasting quotas. These policies shape what audiences actually see and hear day-to-day, but they still must remain consistent with Spain’s constitutional protections and EU standards.

International Sources and Institutions

European Union Law

As an EU Member State, Spain is bound by European Union law, including the principle that EU law has primacy in areas where the EU has competence. EU rules increasingly shape digital communication and audiovisual markets.

Article 11 of the EU Charter of Fundamental Rights protects freedom of expression and media pluralism. When acting within EU law, Spanish authorities must comply with these protections.

Two major EU instruments show how direct this influence can be. First, the Digital Services Act (Regulation (EU) 2022/2065) regulates online platforms and intermediary services across the EU, with transparency duties, processes for handling illegal content, and heightened obligations for very large online platforms. Spain must enforce these rules through its national system.

Second, the Audiovisual Media Services Directive (AVMSD) sets EU-wide standards for television and on-demand audiovisual services, including advertising rules, protections for minors, and promotion of European content. Spain’s General Audiovisual Communication Law (2022) implements these European requirements in national law.

International Obligations

Spain is also a party to major international human rights treaties that shape communication law.

Spain participates in the World Intellectual Property Organization (WIPO), a specialized agency of the United Nations that administers international systems for protecting intellectual property. WIPO maintains global databases for searching patents, trademarks, and industrial designs across jurisdictions. For example, the PATENTSCOPE database allows users to search millions of international patent applications filed under the Patent Cooperation Treaty, while the Global Brand Database provides access to trademark records from national and international registries. These tools help prevent conflicting claims and support cross-border protection of intellectual property.

Spain is also a party to the International Covenant on Civil and Political Rights (ICCPR), which protects freedom of expression in Article 19. Because of Article 10(2) of the Spanish Constitution, Spain’s courts must read domestic constitutional rights consistently with these kinds of international commitments.

A key upshot of this layered legal system is that freedom of expression in Spain is not at the mercy of the national political process alone. Because Spain operates within a broader European and international legal order, attempts to narrow expression face external legal constraints. This layered system makes it less likely that core expressive freedoms will be reduced.

Freedom of Expression and Dignity in Spain

Constitutional Balance: Expression and Honor

Spain protects freedom of expression under Article 20 of the 1978 Constitution, which guarantees the right to express and disseminate ideas and to communicate and receive truthful information, while prohibiting prior censorship. At the same time, Article 18 protects the right to honor, privacy, and personal image, protections that are further implemented through Organic Law 1/1982 on the Protection of Honor, Privacy, and Personal Image. The substance of these two provisions often collide, especially because Spanish courts treat them as equally serious constitutional commitments.

Unlike systems that treat speech as nearly absolute, Spain’s Constitutional Court uses a balancing approach. When expression conflicts with dignity or reputation, courts weigh the competing rights while ensuring that the essential content (núcleo esencial) of each constitutional right is preserved, meaning that neither freedom of expression nor the protection of honor and privacy may be restricted in a way that destroys their core substance. In practice, this can mean allowing strong criticism of public officials or institutions when it contributes to democratic debate, while still permitting legal remedies when speech crosses into false factual allegations or serious attacks on personal reputation. Spanish constitutional jurisprudence has repeatedly emphasized that freedom of expression has a “preferred position” in democratic debate, especially when speech concerns political issues or public officials. But that preferred position does not make it untouchable.

This framework reflects Spain’s transition to democracy after the Franco dictatorship. The 1978 Constitution placed strong emphasis on open public debate as essential to pluralism. At the same time, dignity is considered a foundational value of the constitutional order. This dual commitment to democratic openness and protection of personal honor defines Spain’s speech doctrine.

The Importance of Veracity

One distinctive feature of Spanish law is the requirement of “veracity.” Veracity in ethics is the principle of truth-telling, requiring professionals to be honest, transparent, and accurate in all communications to foster trust. Article 20 protects the right to communicate “truthful information.” Courts do not interpret this to mean that journalists must prove absolute truth. Instead, they must show that they acted with reasonable diligence in verifying their information.

This standard recognizes human limits: reporters and witnesses cannot know “the whole truth.” What matters is whether they checked reliable sources and acted in good faith. If they do, even mistaken reporting may still be protected. If they fail to verify serious factual claims that harm someone’s reputation, liability may follow.

The Constitutional Court has distinguished sharply between opinions and factual statements. Opinions, especially political opinions, receive strong protection, even when harsh or offensive. Factual allegations that damage someone’s honor are treated differently. In defamation cases, courts examine whether the information contributed to public debate or merely harmed reputation without public interest.

Terrorism, the Monarchy, and Controversial Speech

The limits of Spain’s balancing approach become most visible in politically sensitive cases.

Following decades of violence by the Basque terrorist group ETA, Spain criminalized the glorification of terrorism and humiliation of victims under Article 578 of the Criminal Code. Supporters argue that these laws protect democratic stability and the dignity of victims. Critics argue that they have sometimes been applied too broadly, including against musicians and social media users.

In Otegi Mondragón v. Spain (2011), a Basque politician was convicted for referring to the King as the “chief of the torturers.” Spain’s courts upheld the conviction, but the European Court of Human Rights ruled that the conviction violated freedom of expression under Article 10 of the European Convention on Human Rights. The Strasbourg court emphasized that political speech, even when provocative, deserves heightened protection and that public institutions must tolerate stronger criticism.

A similar controversy arose in Stern Taulats and Roura Capellera v. Spain (2018), involving protesters who burned photographs of the King during a political demonstration. Spanish courts treated the act as an insult to the Crown. The European Court again ruled that Spain had violated freedom of expression, finding that the act was symbolic political protest rather than incitement to violence.

Artistic expression has also generated debate. The prosecution of rappers such as Valtonyc for lyrics praising terrorist groups or insulting state institutions sparked international criticism.Some observers argued that criminal sanctions risked chilling artistic freedom. Others defended the prosecutions as necessary to prevent normalization of violence.

These cases reveal a deeper tension in Spain over how far a democracy can go in protecting institutional dignity and social peace without narrowing the space for dissent.

Ongoing Debate: Dignity-Centered Democracy

Spain’s speech model is often described as dignity-centered. Human dignity is explicitly recognized in Article 10 of the Constitution as a foundational principle of the legal order. Courts therefore treat attacks on honor, reputation, or institutional integrity as constitutionally significant.

Some scholars argue that this model reflects a mature constitutional democracy that refuses to sacrifice personal dignity in the name of absolute speech.[35][36] They see Spain’s approach as consistent with broader European human rights traditions, where proportionality and balancing are central.

Others argue that criminal penalties for offensive speech, especially in political or artistic contexts, create a chilling effect and discourage open debate. They point to repeated rulings from the European Court of Human Rights pushing Spain toward stronger protection of political expression.

Spain’s doctrine continues to evolve through judicial dialogue between national courts and European institutions.The result is a system that seeks to protect democratic debate while also preserving the constitutional value of dignity, a balance that remains contested and actively debated.

Spain’s 2015 Citizen Security Law (“Gag Law”)

On December 20, 2014, protesters in Madrid demonstrated against Spain’s new Citizens Security Law, known as the "Gag Law" (Ley Mordaza)

The Citizen Security Law (Ley Orgánica 4/2015 de protección de la seguridad ciudadana) is a Spanish national law that entered into force on 1 July 2015. It is widely known in public debate as the “Gag Law” (Ley Mordaza), a nickname given by critics who argue that it discourages protest and limits free expression through financial penalties rather than formal censorship.

The law was introduced by Spain’s government as a modernization of public-order regulations. Officials stated that it was designed to provide clearer rules for police operations, maintain public security, and respond to disruptive protest activity. Supporters emphasize that the law does not establish prior censorship and does not criminalize political opinions as such.

Critics, however, argue that while the Constitution only prohibits prior censorship, the Gag Law creates a system of administrative fines imposed after expression, which can still discourage participation in protests and public criticism. They contend that heavy fines can have a chilling effect, especially on journalists and activists.

Key Provisions of The Citizen Security Law

The Citizen Security Law establishes a detailed system of administrative infractions and sanctions. Fines range from several hundred euros to up to €600,000 in the most serious cases.

Among the most controversial provisions are:

• Fines (up to €600) for holding public demonstrations without prior notification, even if peaceful
• Fines (up to €600) for protests that deviate from approved routes
• Fines (up to €30,000) for protests causing disturbances near Parliament or regional government buildings
• Fines (up to €600,000) for unauthorized protests near key infrastructure (airports, nuclear plants, refineries, transport hubs)
• Fines (up to €30,000) for obstructing police or officials carrying out evictions or court orders
• Fines (up to €30,000) for recording or publishing images of police officers if deemed to endanger their safety or an operation

Human rights organizations have argued that the wording of some provisions is broad and gives authorities significant discretion in enforcement.

International Reaction

The “Gag law” was met with strong criticism from international human rights groups even before it entered into force. Human Rights Watch warned that the legislation undermined freedom of assembly and expression by allowing heavy fines for peaceful protest and for recording police conduct.

Amnesty International described the law as a threat to civil liberties and warned that restrictions on filming police could weaken transparency and accountability. The Committee to Protect Journalists (CPJ) also raised concerns that the law could deter media coverage of demonstrations and police activity. In addition, United Nations Special Rapporteurs expressed concern that the law’s provisions were overly broad and risked arbitrary enforcement against peaceful protesters.

Javier Bauluz Case

One widely cited case involved Spanish photojournalist Javier Bauluz, a Pulitzer Prize–winning photographer, who was fined €960 under the Citizen Security Law after a confrontation with police while documenting migrant arrivals in the Canary Islands in November 2020. He had been photographing rescue boats arriving in Arguineguín, where thousands of migrants were being held in conditions later described by a judge as “deplorable.” Video of the incident shows officers grabbing him and ordering him to leave, and he was later fined for “disrespecting an agent” and “refusing to identify himself,” though he said he had complied and was simply doing his job.

The fine arrived more than a year later and gave little explanation beyond citing provisions of the law. Bauluz rejected the sanction, arguing that police were limiting press access to prevent journalists from properly documenting the situation. He criticized the Gag Law for converting disputes into administrative fines imposed directly by authorities rather than matters handled through criminal courts.

The case became a symbol of broader concerns that the law can be used to penalize journalists reporting on police activity. Press freedomorganizations and media groups condemned the fine and called for reform, arguing that the law enables arbitrary sanctions and threatens freedom of expression. Although Spain’s Constitutional Court upheld most of the law in 2021, critics continue to argue that reform is necessary to bring it in line with international human rights standards.

Constitutional Court Review

Spain’s Constitutional Court reviewed the Citizen Security Law following multiple constitutional challenges. In Constitutional Court decision STC 172/2020, the Court upheld most provisions of the law but clarified limits on its application, particularly regarding sanctions for the use or dissemination of images of police officers. The Court emphasized that penalties cannot be applied in ways that effectively restrict legitimate journalistic reporting or public documentation of police activity. One of the most controversial aspects of the ruling was the Court’s decision to uphold the provision allowing administrative fines when photographs or videos of police officers are published in ways that could endanger an officer’s safety or interfere with an ongoing operation.

The Constitutional Court clarified that the mere act of recording or photographing police officers during public events or demonstrations is not automatically illegal. Instead, sanctions may only be imposed when the dissemination of those images creates a concrete risk to the safety of officers or interferes with a police operation. For example, publishing images that reveal the identity of undercover officers or expose the location of police units during an active operation could justify sanctions. By contrast, photographing police activity during public demonstrations for journalistic reporting or public accountability generally falls within the protections of freedom of expression.

The Court emphasized that enforcement must respect constitutional guarantees of freedom of expression and assembly. However, it did not invalidate the core structure of the law, leaving its administrative sanction framework intact.

The Ongoing Debate

The Citizen Security Law remains one of the most politically divisive laws in Spain’s contemporary democracy.

Supporters argue that the law provides necessary tools to maintain order and protect both police officers and the public. They stress that fines are administrative rather than criminal penalties and are subject to judicial review. From this perspective, the law regulates conduct rather than suppressing political ideas.

Critics, by contrast, argue that the law creates a climate of deterrence. Even without criminal prosecution, the risk of substantial fines may discourage citizens from participating in spontaneous demonstrations or from documenting police actions. Civil liberties groups describe this as a “chilling effect” on democratic participation.

Reform efforts have repeatedly emerged in Spain’s national legislature, particularly from left-leaning parties that argue the law should be revised or partially repealed. These parties contend that provisions related to protest, public demonstrations, and the recording of police activity give authorities too much discretion and risk discouraging political participation. By contrast, many right-leaning parties have defended the law, arguing that it provides necessary tools for maintaining public order and protecting police officers, especially during large demonstrations and periods of political unrest. As a result, proposals to substantially reform the law have often stalled due to political disagreement in parliament.

This divide reflects broader political tensions in Spain. Supporters of reform frequently frame the law as a legacy of a more security-focused approach to governance that emerged during periods of economic crisis and protest movements in the 2010s. Opponents of reform argue that weakening the law could undermine the ability of authorities to manage demonstrations and maintain public safety. Because these disagreements map closely onto Spain’s left-right political divide, efforts to significantly change the Citizen Security Law have proven difficult despite ongoing public debate.

Spain’s Historical Memory Act

Historical Background and Democratic Transition

Francisco Franco in 1930, when he was still a rising officer in the Spanish army, years before the Spanish Civil War brought him to power and led to his long dictatorship.

Spain’s contemporary debate over historical memory is rooted in the Spanish Civil War (1936–1939) and the subsequent dictatorship of General Francisco Franco, which lasted until 1975. The war divided the country along political, ideological, and religious lines and resulted in widespread repression, imprisonment, and executions. After Franco’s victory, the regime promoted an official narrative that framed the conflict as a defense of national unity and Catholic identity. Public monuments, street names, memorials, and religious symbols commemorating the dictatorship were erected throughout Spain.

Following Franco’s death in 1975, Spain transitioned to democracy through a negotiated political process often referred to as the “Transition.” During this period, political leaders adopted what became known as the “Pact of Forgetting” (Pacto del Olvido), an informal political understanding that prioritized reconciliation and democratic stability over reopening Civil War-era grievances. The 1977 Amnesty Law granted broad amnesty for politically motivated crimes committed during the dictatorship.

By the early 2000s, civil society organizations began advocating for greater recognition of victims of Franco-era repression, including efforts to identify mass graves and remove public symbols associated with the dictatorship. Supporters argued that democratic consolidation required public acknowledgment of historical injustices. In response, Spain enacted Law 52/2007, commonly known as the Historical Memory Act.

The 2007 Historical Memory Act

Law 52/2007 recognizes and expands rights for individuals who suffered persecution or violence during the Civil War and dictatorship. Its preamble states that it is not the role of the legislator to impose a specific collective memory, but rather to promote democratic values and protect personal and family memory as expressions of democratic citizenship.

At the same time, the law mandates the removal of “shields, insignia, plaques and other objects or commemorative mentions” that exalt the military uprising, Civil War, or repression of the dictatorship from public buildings and spaces. It also supports efforts to locate and identify victims of repression and provides symbolic recognition to those who suffered under the regime.

The Act represents a shift from the earlier policy of institutional silence toward a more active engagement with the legacy of the dictatorship.

The main provisions are:

• Official recognition of victims of political, religious, and ideological violence on both sides of the Civil War and under Franco’s rule
• Formal condemnation of the Franco regime
• Ban on political events at the Valley of the Fallen, where Franco was buried
• Removal of public symbols, plaques, statues, and insignia that celebrate the military coup or the dictatorship (with limited exceptions for artistic, architectural, or religious reasons)
• Government support for locating, identifying, and exhuming victims buried in mass graves
• Spanish citizenship granted to surviving members of the International Brigades without requiring them to give up their original nationality
• Declaration that Franco-era trials and laws lacked legitimacy
• Temporary changes to nationality rules allowing people who left Spain during the dictatorship — and their descendants — to reclaim Spanish citizenship
• Financial and symbolic assistance for victims and their families

Supporters’ and Critics’ Perspective

Supporters of the Historical Memory Act argue that it reflects a mature democratic commitment to historical justice and human dignity. From this perspective, a constitutional democracy cannot maintain public symbols that glorify authoritarian rule. Removing such symbols is seen not as erasing history, but as ending official state endorsement of a particular political narrative.

Advocates also emphasize the “right to truth” for victims and their families, aligning Spain with broader international human rights standards concerning recognition, memory, and accountability. Reports by United Nations Special Rapporteurs have encouraged Spain to strengthen efforts related to truth, justice, and reparation for victims of Franco-era repression.

For supporters, the law corrects decades of imbalance in public memory and promotes constitutional values grounded in democracy and human rights.

Critics argue that the Historical Memory Act risks politicizing historical interpretation by privileging one narrative over others. Some scholars contend that legislative intervention in historical memory can transform contested historical debate into state-defined orthodoxy. Opponents also argue that removing monuments may constitute symbolic erasure rather than genuine reconciliation. They maintain that democratic societies should allow historical interpretation to evolve through open public discourse rather than through statutory mandates.

Much of this debate has centered on the Valle de los Caídos (Valley of the Fallen) memorial complex, one of the most prominent and controversial symbols associated with Spain’s Civil War and the Franco dictatorship. The massive monument, built after the war and located near Madrid, contains a basilica carved into a mountain and a large cross that dominates the surrounding landscape. For decades it served as the burial site of General Francisco Franco as well as thousands of victims from both sides of the Civil War. Supporters of Spain’s memory laws argue that the site symbolized the continued public prominence of Franco’s regime, while critics argue that the complex represents an important historical monument whose meaning should be debated rather than reshaped through legislation.

The controversy intensified when the Spanish government ordered the exhumation of Franco’s remains from the site in 2019, relocating them to a different cemetery. The government justified the decision as part of a broader democratic memory policy aimed at preventing the memorial from functioning as a place of political homage to the dictatorship. Critics, however, viewed the move as politically motivated and reflective of Spain’s continuing polarization over how the country should confront its past.

Ongoing Debate: Truth, Memory, and Democratic Pluralism

Spain’s memory laws have become one of the most visible and contested areas of contemporary public debate. The discussion centers on how a democracy should address a painful past and what role the state should play in shaping public memory. In Spain, this debate appears in disputes over monuments, commemorations, public spaces, and the official recognition of victims of the Civil War and Franco’s dictatorship.

Supporters of the Democratic Memory framework argue that removing Francoist symbols and formally recognizing victims strengthens democracy. They maintain that a constitutional state should not continue to honor an authoritarian regime in public spaces. From this perspective, memory laws do not erase history but instead end state endorsement of dictatorship and affirm the dignity of those who suffered repression.

Critics argue that legislating memory can deepen political divisions. Some commentators warn that when the government takes an active role in defining historical meaning, it risks turning complex historical debates into partisan conflicts. Articles examining Spain’s evolving memory laws describe a society still divided over how to interpret the Civil War and Franco’s legacy, with disagreement over whether these reforms promote justice or contribute to polarization.

In today’s Spain, historical memory is not only about the past. It remains tied to ongoing debates about national identity, democracy, and constitutional values. The regulation of collective memory shows how law, history, and public expression intersect in a modern democratic society.

Religious Freedom in Spain

Historical Development

Spain’s religious history is defined less by steady liberalization than by recurring struggles over whether religious belief could appear in public at all. Medieval coexistence among Christians, Muslims, and Jews existed, but it never displaced the stronger political impulse toward religious unity enforced through law.

During the early constitutional period that impulse was embedded directly into state structures. The Constitution of Cádiz (1812) combined political liberalism with explicit Catholic exclusivity, requiring public officials to swear to defend Catholicism and mandating religious instruction in schools. Religion was not only protected; it was communicated through state institutions.

Later constitutions softened these rules but continued to restrict public expression. Non-Catholic worship was sometimes tolerated, but often confined to private settings, allowing belief without visible organization or expression.

The Spanish Constitution of 1931 marked a sharp shift by restricting the Catholic Church’s institutional role, removing funding, dissolving religious orders, and limiting religious education. Rather than establishing neutrality, this reallocated control over how religion could appear in public institutions. This approach reflected a broader European trend during the early twentieth century, as communist and strongly secular regimes sought to remove religion from public life altogether. In those systems, religious expression was not merely regulated but suppressed—public worship, teaching, and institutional presence were restricted or eliminated and replaced with state-controlled ideological messaging. Spain’s 1931 model did not go as far, but it operated within the same broader movement toward limiting religion’s visibility in public communication and institutional life.

Under Franco, Catholicism was restored as the central organizing force of public life. Religious teaching, symbols, and institutional presence were again integrated into education and law, but limited almost entirely to a single faith.

The 1978 Constitution breaks from both models. Article 16 provides:

• “Freedom of ideology, religion and worship of individuals and communities is guaranteed… No one may be compelled to declare his ideology, religion or beliefs… No religion shall have a state character….”

This provision protects both private belief and public expression, prevents compelled disclosure, and removes any official state religion, while still allowing cooperation with religious groups. Religion remains visible in public life, but it is no longer directed by the state.

Modern Spain: Public Expression, Institutional Practice, and European Context

Spain’s modern framework allows religion to operate openly in public life while maintaining formal neutrality. Religious expression appears in education and public institutions as individual and community activity protected by law rather than as state endorsement.

This includes the ability to access religious instruction in public schools when requested and to organize religious communities with legal recognition. These practices reflect a system where religious expression remains visible in ordinary public settings rather than confined to private belief.

This approach aligns with international human rights standards. The Spanish Constitution prohibits discrimination based on religion and guarantees the right to practice religion publicly or privately, consistent with broader protections of religious expression.

Spain operates within a broader European human rights framework that applies the margin of appreciation doctrine, allowing individual countries to adopt different approaches to religion in public life. Under this doctrine, the European Court of Human Rights permits states to balance religious expression and public order according to their own legal traditions.

The contrast with France illustrates this flexibility. France restricts visible religious symbols such as hijabs or large crosses in public schools under Law No. 2004-228 of 15 March 2004,¹ a policy upheld by the European Court of Human Rights in Jasvir Singh v. France. In Spain, by contrast, similar forms of expression are generally permitted, and wearing religious symbols is treated as an individual act rather than a violation of neutrality.

Spain’s system also allows religious institutions to participate directly in public education. In Fernández Martínez v. Spain, the European Court of Human Rights upheld Spain’s ability to allow the Catholic Church to control who teaches Catholic religion in public schools. The case involved a teacher who lost his position after publicly opposing Church teachings. The Court accepted that religious institutions may define who represents their message in educational settings.

Despite formal equality, differences remain in practice, and they are best understood as largely natural rather than artificial. Spain’s legal framework is neutral, but historical and demographic factors shape how religious expression appears. For example, Catholic religious instruction is more widely available in public schools because Catholicism has a larger institutional presence and more students requesting it, not because the law excludes other faiths. Other groups have the same legal rights but less visible participation due to size and infrastructure.

The result is a system in which religion remains active and visible in public life without formal state endorsement. Spain does not remove religion from public space; it regulates how it appears and ensures that participation remains voluntary.

The Right to Be Forgotten

Google Spain and the Transition to the General Data Protection Regulation

A seminal case in modern data protection law arose from Spain and reshaped the relationship between privacy and access to information in the digital age. In Google Spain SL v. AEPD and Mario Costeja González, Spain’s Audiencia Nacional asked whether EU data protection law could require a search engine to remove links to lawful, truthful information appearing in name-based searches.

The dispute stemmed from a 1998 notice in La Vanguardia announcing the forced sale of Mario Costeja González’s property for unpaid social security debts. Although the publication was lawful, its later digitization made it easily accessible through search engines, effectively reviving a long-resolved matter. Costeja requested removal of the links, and the Spanish Data Protection Agency ordered Google to de-list them while allowing the newspaper to remain online.

The Court of Justice of the European Union held that individuals may request removal of links where the information is “inadequate, irrelevant or no longer relevant,” even if the original publication remains lawful. It reasoned that search engines act as “data controllers” because they organize and present personal data in a way that significantly affects privacy. The legal harm, therefore, arises not from the original publication, but from the amplified visibility created by search engines.

Although Google Spain was decided under Directive 95/46/EC, that framework has since been repealed and replaced by the General Data Protection Regulation (GDPR). The repeal did not eliminate the right recognized in the case. Instead, the principle was codified and strengthened in Article 17 of the GDPR, which establishes a “right to erasure.” Article 17 allows individuals to request deletion of personal data that is no longer necessary, relevant, or lawfully processed, and requires controllers, where feasible, to take reasonable steps to inform other entities processing that data, extending the effect of erasure beyond a single source.

Crucially, Article 17 is grounded in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union. Article 7 guarantees the right to respect for private and family life, while Article 8 establishes a distinct right to the protection of personal data, requiring that such data be processed fairly and subject to independent oversight. In Google Spain, these provisions justified the Court’s conclusion that search results displaying outdated personal information can constitute an ongoing interference with private life and that search engines, as data controllers, must respond to requests for removal.

Unlike the Directive, the GDPR applies directly across all Member States, creating a more uniform and enforceable framework. EU law further provides that references to the repealed Directive are to be read as references to the GDPR, preserving continuity between Google Spain and the current legal regime.

The Modern Doctrine of the Right to Be Forgotten

While Google Spain established the right to be forgotten, subsequent case law has transformed it into a structured doctrine grounded in Article 17 of the GDPR and the Charter. The modern right is not a mechanism to erase the past, but a balancing framework that evaluates whether continued access to personal information remains justified in light of both privacy and communication interests.

Under Article 17, individuals may request erasure where data is no longer necessary, is inaccurate, or is unlawfully processed, but the right is not absolute. Courts apply a case-by-case balancing test rooted in Articles 7 and 8, weighing the individual’s privacy and data protection rights against the public’s interest in access to information. In practice, this inquiry turns on factors such as accuracy, passage of time, the individual’s role in public life, and whether the information contributes to a matter of legitimate public concern. This balancing directly implicates core communication law values, including freedom of expression, the public’s right to receive information, and the preservation of an accurate public record.

In Google LLC v. CNIL, the Court addressed the geographic scope of the doctrine. The French data protection authority mandated global delisting, arguing that limiting content removal to European domains rendered the "right to be forgotten" ineffective. They asserted that removing search results only on regional sites (e.g., google.fr) allowed users to easily bypass the restriction by accessing global versions (e.g., google.com). The Court rejected that position, holding that EU law does not require global de-referencing. Instead, search engines are required to ensure effective content removal within the European Union by using geo-blocking to prevent access from non-EU domains. This approach limits the application of EU privacy laws to its own borders, avoiding global, extraterritorial censorship that would conflict with stronger international speech protections

In GC and Others v. CNIL, the Court refined the balancing test for sensitive categories of information. The case involved requests to remove links containing data about political affiliations, religious beliefs, and criminal history. The Court held that such data requires heightened protection, but not automatic removal. Instead, search engines must determine whether continued access is “strictly necessary” for the public’s right to information. For example, information about a politician’s past conduct may remain accessible because it informs democratic decision-making, while similar information about a private individual is more likely to be removed. This standard effectively requires search engines to evaluate whether speech contributes to public discourse, placing them in a quasi-adjudicative role traditionally occupied by courts.

In TU and RE v. Google LLC, the Court addressed inaccurate or misleading information. The applicants challenged articles criticizing their business practices, arguing that the information was false or distorted. The Court held that individuals need not first obtain a judicial ruling to prove falsity. Instead, if they provide relevant and sufficient evidence that the information is manifestly inaccurate, the search engine must delist it, including associated thumbnail images. This ruling has significant implications for communication law, as it creates a mechanism similar to defamation law within data protection, allowing individuals to challenge harmful or misleading content without initiating formal litigation while requiring platforms to assess the accuracy of speech.

At the same time, the Court has emphasized limits grounded in the public interest. In Camera di Commercio di Lecce v. Manni, the Court rejected a request to remove personal data from a public commercial register documenting a past bankruptcy. It held that such records serve the public interest in legal certainty, transparency, and market reliability. This reflects a longstanding communication law principle: certain categories of information—particularly official records—retain enduring public value and cannot be erased simply because they are reputationally harmful.

Taken together, these cases show that the right to be forgotten is really about whether information should still be easy to find through a name search. If it no longer serves a real public purpose, it can be removed from search results; if it does, it stays. In practice, search engines make that call first, which means they end up deciding what information about a person remains visible online.

Spain in the AI Era

Artificial Intelligence and the Changing Nature of Communication

Artificial intelligence is reshaping a core assumption of communication law: that speech and images can be reliably traced to a real speaker. Technologies like deepfakes, AI-generated influencers, and algorithmic content systems now allow communication to circulate without a clear human source, raising new questions about attribution, truth, and accountability. Spain offers a useful lens for how legal systems are responding.

Spain does not regulate artificial intelligence through a single, unified statute. Instead, it operates within the framework of the European Union’s Artificial Intelligence Act, which establishes a risk-based regulatory model across Member States. High-risk systems, such as those used in employment or public decision-making, must comply with obligations including transparency, human oversight, and safeguards against bias. Whether generative AI tools fall within these categories depends on how they are used and the extent to which they influence real-world or communicative outcomes.

At the national level, Spain is developing a Law on the Good Use and Governance of Artificial Intelligence, which will supplement the EU framework and introduce enforcement mechanisms, including the ability to suspend harmful AI systems. Spain has also created the Agencia Española de Supervisión de Inteligencia Artificial (AESIA) as its central regulator. Notably, through Royal Decree 817/2023, Spain became the first country in the European Union to implement an AI regulatory sandbox, allowing high-risk systems to be tested under real-world conditions and effectively piloting compliance with the EU AI Act before full enforcement.

Spain does not yet have a standalone AI statute, but its existing legal framework, particularly in areas like media, privacy, and commercial regulation, already shapes how artificial intelligence operates in practice.

How Spain is Currently Regulating AI

Spain’s audiovisual and media laws are beginning to directly address AI-generated communication. Under Law 13/2022 on Audiovisual Communication, content creators, including high-level influencers, can be treated as audiovisual service providers and are responsible for the content they distribute. This matters in the AI context because creators using AI-generated avatars, voices, or deepfake-style content for advertising must ensure that such material is not misleading. For example, an influencer using an AI-generated voice to promote a product without disclosure could face liability for deceptive commercial communication.

This emphasis on transparency is reinforced in Spain’s draft law the Good Use and Governance of Artificial Intelligence, which treats the undisclosed use of deepfakes as a serious regulatory violation in many contexts.

Reputation and dignity are also central concerns. Organic Law 1/1982 protects the right to honor, privacy, and self-image, and its application to AI-generated content is increasingly significant. Disseminating a non-consensual deepfake, such as placing a person’s likeness into fabricated media, can constitute an illegitimate intromission into that person’s rights, even if the content is artificially generated. Spanish doctrine is increasingly moving toward what scholars describe as algorithmic honor: the idea that harm to reputation can arise from automated systems themselves, regardless of human intent. This aligns with Spanish Supreme Court jurisprudence recognizing that reputational harm caused by automated or data-driven systems may still trigger liability where the effect is injurious.

Closely related is the right to correct false information. Organic Law 2/1984 establishes a traditional right of rectification, allowing individuals to demand correction of inaccurate public statements. In the digital era, this concept is reinforced by Spain’s Organic Law 3/2018 on Data Protection and Digital Rights, which includes a modern digital rectification right requiring platforms to address inaccurate or misleading personal data. In practice, this provides a legal tool against AI-generated falsehoods, such as fabricated biographies or hallucinated statements, by requiring platforms or publishers to correct the record.

Spain’s approach also extends into advertising law. Under Law 3/1991 on Unfair Competition, commercial practices must not mislead consumers. This applies directly to AI-generated endorsements or testimonials. For instance, if a company deploys an AI-generated persona that appears as specific person to promote a product without disclosure, regulators may treat this as deceptive advertising because it manipulates the audience’s trust in human communication.

At a structural level, Spain is also confronting the role of algorithms in shaping communication itself. The Rider Law, enacted through Royal Decree-Law 9/2021, requires companies to disclose the parameters and logic of algorithms that affect workers’ conditions. While rooted in labor law, this requirement has clear communicative implications because it forces organizations to explain how algorithmic systems decide and communicate outcomes such as hiring, firing, or task allocation. Spanish courts have upheld this transparency obligation, confirming that algorithmic decision-making can be treated as a form of accountable communication within legal frameworks.

This logic reaches its clearest expression in the Spanish Supreme Court’s BOSCO decision. There, the Court required the government to disclose the logic of an automated system used to determine eligibility for public benefits. From a communication law perspective, the ruling treats algorithmic outputs as a form of state communication. If the government uses an automated system to speak to citizens through decisions, it must also explain that reasoning. Transparency thus becomes a constitutional requirement tied to the public’s right to information.

At the same time, BOSCO exposes a deeper constitutional tension. The right of access to information under Article 105(b) of the Spanish Constitution may conflict with protections for intellectual property and trade secrets under Article 33. The Court’s reasoning suggests that, at least where fundamental rights are implicated, public communicative accountability can outweigh private commercial secrecy. This marks a significant shift in how communication law interacts with technology, as the logic behind speech itself may become subject to disclosure.

Across these areas, a common theme emerges. Spain is not treating AI as a separate legal problem requiring entirely new doctrines. Instead, it is adapting existing communication law principles, including truthfulness, transparency, dignity, and accountability, to new technological conditions. The result is a framework in which AI-generated communication is regulated not by its novelty, but by its effects on the public sphere and on individual rights. This remains a rapidly developing landscape as Spain continues to refine its approach alongside evolving European standards.

The Right to One’s Own Image in Spain

The Legal Doctrine of the Right to One’s Own Image

Spanish law protects the “right to one’s own image” as a distinct legal interest that governs how a person’s identity—through image, voice, or other identifying features—may be used by others, particularly in media and commercial contexts. This right is codified in Organic Law 1/1982, which provides civil remedies against “illegitimate interference.” Article 7.5 treats as unlawful the capture or publication of a person’s image in private contexts, while Article 7.6 prohibits the use of a person’s name, voice, or image for advertising, commercial, or analogous purposes.

Unlike copyright law, which protects creative works, the right to one’s own image protects the individual as the subject of representation. Even where a photograph or video is lawfully owned by a third party, the person depicted retains control over how their likeness is used. This distinction is especially important in communication law, where images circulate through media, advertising, and digital platforms independently of the underlying work.

Although commonly framed as a visual right, Spanish law explicitly extends protection beyond appearance to other identifying attributes. Article 7.6 includes the use of a person’s “name, voice, or image,” reflecting a broader concern with recognizable identity rather than strictly visual likeness.

While the right originates in Article 18.1 of the Spanish Constitution, which guarantees protection of honor, privacy, and one’s own image, Spanish courts have developed it as an autonomous legal doctrine. Liability does not depend on falsity, reputational harm, or physical intrusion, but instead on the unauthorized use of identifiable personal attributes. In STS 60/1998, the Supreme Court clarified that the key inquiry is whether a person can be recognized, even if not with perfect clarity. This means that partial or stylized representations, such as silhouettes, blurred images, or distinctive features, may still trigger protection if identification is possible.

At the same time, the right operates within a structured set of limits. Article 8 of Organic Law 1/1982 provides exceptions where competing interests prevail, including where there is a “predominant and relevant” cultural or informational interest or where images of public figures are captured in public settings. Rather than applying rigid categories, courts evaluate whether a particular use is justified in light of its contribution to public discourse or cultural expression.

From Control to Commerce: How Image Rights Are Monetized

These principles become especially concrete in contexts like sports, where image and identity are inseparable from commercial value. Athletes’ likenesses are routinely used by clubs, sponsors, and media, but Spanish law maintains that control over that use remains with the individual. A footballer, for example, may authorize a club to use his image for team promotions, while separately licensing endorsement rights to a brand.

Spanish law structures this through a dual framework:

• Negative right: the ability to block unauthorized uses
• Positive right: the ability to license and commercially exploit one’s image

This explains why contracts in professional sports carefully define scope, duration, and purpose of any assignment.

Crucially, Spanish law adopts a broad understanding of “commercial” use. This broader conception is illustrated by STS 816/1996. There, the City of Madrid used photographs of identifiable individuals in a public-awareness campaign promoting respect for the elderly. The Supreme Court held that the use was “publicitario” even without profit, because it relied on identifiable persons to convey its message. The Court rejected the defense under Article 8.1, emphasizing that the campaign did not require the use of specific individuals’ images to achieve its purpose.

By contrast, in STS 21 December 1994, the Court allowed the reuse of a performer’s image to promote a revival of a traditional musical production. The distinguishing factor was context: the image directly related to the cultural work being promoted, and its use contributed to preserving a recognized artistic tradition. Together, these cases show that Spanish courts focus less on formal categories and more on whether the use is necessary and proportionate to its asserted purpose.

Spanish law also extends this protection to voice. In the Tom Waits case (Juzgado de Primera Instancia de Barcelona, 2006), an advertising agency hired a performer to imitate Waits’s distinctive voice after he refused to participate in a commercial. The court held this unlawful, reasoning that imitating a recognizable voice for commercial purposes exploits a person’s identity and misleads the public into believing the individual endorsed the product.

From Exposure to Use: When the Public Can Reproduce an Image

A central question in this doctrine is how far public visibility allows others to reproduce a person’s image. Spanish law recognizes a strong interest in freedom of information, particularly where images contribute to reporting on matters of public concern.

In STS 28 December 1996, a newspaper published a photograph of a criminal defendant leaving court. The Supreme Court held the publication lawful because it related to a matter of public interest and contributed to informing the public about judicial proceedings. The fact that the image was taken in a public setting reinforced this conclusion.

However, public exposure does not eliminate the need for consent. This principle becomes especially important in the digital context. In STS 91/2017, a newspaper used a photograph taken from a victim’s Facebook profile when reporting a violent incident. The Court held that this violated the right to one’s image, emphasizing that making a photograph accessible online does not amount to consent for its reuse. Consent must be specific to each use and cannot be inferred from general availability.

The limits of permissible use become even clearer in cases involving dignity and suffering. In STC 231/1988, the Constitutional Court held that distributing footage of a bullfighter dying after being gored violated the privacy rights of his widow. Although the event occurred in a public arena, the Court concluded that the dissemination of images capturing extreme distress crossed the boundary of acceptable informational use.

As of now, the Spanish right to one’s own image is best understood as a doctrine of controlled visibility. It protects an individual’s authority over how they are represented, even in public-facing contexts such as media, sports, and digital platforms. While the law accommodates competing interests, such as news reporting, cultural expression, and satire, it consistently resists the idea that visibility alone permits unrestricted use.

In an environment where images circulate rapidly and widely, this framework ensures that identity remains anchored in the individual rather than absorbed into the commercial or informational systems that reproduce it.