Governments of both colors have been trying to regulate the internet for years. And unfortunately freedom of expression is the great victim. Laws, proposals and reforms that, based on aspects such as intellectual property, security or the fight against terrorism, have been limiting what users can publish on the network or speeding up the process of blocking web pages.
From the Sinde Law, which marked the beginning of the defense of fundamental rights on the internet in Spain, to recent reforms such as the Intellectual Property Law. These are the projects that we have been warning about all these years and that have progressively undermined our freedom on the internet.
In 2011, the PSOE government approved the Sustainable Economy Law, better known as the Sinde Law. It was then that copyright took precedence over other fundamental rights, allowing an organism dependent on the Ministry of Culture could prevent access to any web page. A law that removed judges from the equation when it comes to blocking pages and gave great powers to rights management associations.
Reform of the Intellectual Property Law (2014)
In 2014, with the PP in government, the reform of the Intellectual Property Law was approved. Fines for link pages were toughened and the Canon AEDE for which content aggregators had to pay copyright entities. A reform that introduced the concept of “private copy”, expelled Google News from Spain and gave more powers to administrative bodies to suspend domains.
Reform of the Penal Code (2015)
With the reform of the Penal Code, specific mentions were included for the ‘Revenge Porn’ and limitations for cyberactivism. Prison sentences were also added for those who facilitate the removal of DRM and penalties were introduced for those who issue “messages or slogans” that incite to disturb public order. A preview of what would later be included in the Gag Law.
Criminal Procedure Law
In 2015, the so-called Torquemada Law opened the door for a judge to order the installation of spyware to investigate any crime on the network and the creation of the figure of “computer undercover agents”.
Also that year there was a new antiterrorist agreement where, with the precept to fight against the terrorist threat, many user rights were limited. A trend that continues in 2021, where the European Union will allow content to be censored in less than an hour without going through the judge.
Citizen Security Law (Gag Law)
Approved in March 2015, the Citizen Security Law established penalties for tweeting calls for demonstrations or protests and the publication of photos of police officers was prohibited. This law, together with the reform of the penal code and the antiterrorist law, is what was popularly known as the Gag Law. A turning point in the freedoms of the Internet and a “criminalization of the internet” that is still very much present.
“In Spain he has been sentenced to prison terms for a joke or a song. Journalists have also been fined and detained while reporting. Or prison has been requested for media that have published leaks. And the rules that allow all this are still in force, so it can continue to happen “, denounces Virginia Pérez Alonso, president of the Platform in Defense of Freedom of Information (PDLI)
Forcing the identity of users
“We want that behind the accounts in social networks there is always an identity and that the user knows that he is identified,” explained Rafael Hernando, spokesman for the PP. It was a parliamentary initiative with the aim of forcing users to use their “real administrative identity” when registering.
Maintaining anonymity is a fundamental right and any regulation that tried to prohibit or limit it “would probably be unconstitutional,” explained lawyer Carlos Sanchez Almeida.
Proposal to reform the Law on the right to honor
Another non-law proposal was the reform of the Organic Law for the protection of the right to honor, personal and family privacy, and self-image. An initiative to specify attacks on honor through the internet. Fortunately, it was not carried out. “We are concerned about this reform because the Internet does not require special laws: The same rights and obligations must exist on the Internet as outside of it, and the current regulations on the right to honor already cover these assumptions, “explained Pérez Alonso.
Organic Law on Data Protection and Digital Rights
At the end of 2018, the new Organic Law on Data Protection and Digital Rights was approved. A reform endorsed by all parties and that opens the door for develop ideological profiles of citizens with the data displayed on the Internet and to be able to send electoral propaganda without prior consent.
As clarified by the Spanish Agency for Data Protection, the collection by the parties of personal data is only to “obtain information that allows them to press the concerns of citizens in order to respond to their electoral proposals.”
The norm too expanded the scope of the right to digital rectification and the right to be forgotten. A law that, among other aspects, made it easier for certain politicians to force the rectification of compromised information that has not yet been proven.
Reform of the Intellectual Property Law (“New Sinde Law”)
In February 2019, the new Intellectual Property Law was finally approved. A “new Sinde Law” agreed by the PSOE, PP and Citizens that represents a hardening of the original Sinde Law. The new law further reduces the role of judges and allows the Government to close web pages without having the need to have judicial authorization. A case that we saw at the end of 2019 with the closure of Exvagos ordered by the Ministry of Culture.
“This is how they definitely culminate in getting rid of the judges. This same proposal to completely liquidate judicial control to close websites is the one they stopped in 2011 because it was too big a pill for our slot machines,” explained David Bravo, a lawyer specializing in computer law and intellectual property.
At the end of 2019, Royal Decree Law 14/2019 was approved, by which the Government can allege “reasons of public order” to intervene in any infrastructure, associated resource or network level. The measure modifies the General Telecommunications Law to grant the government these powers. “A botched law that in the wrong hands can be dangerous,” Almeida pointed out.
Proposal to remove hate messages
At the request of United We Can, Congress approved the ‘Non-Law Proposition on the prevention of the propagation of hate speech in the digital space’. Among other measures, it was proposed to create a single tool against hate speech and to establish a maximum time to remove reported content. The problem is that, once again, an attempt is made to eliminate the figure of the judge to determine what a “hate message” is.
Monitor networks to chase hoaxes
Disinformation and the fight against ‘fake news’ is another of the battles that governments have used to justify their legislation. In April 2020, the PSOE government proposed legal changes to prevent “those who pollute public opinion” from going unpunished.
“I don’t think fighting hoaxes requires a specific type. I don’t think so because there cannot be one comprehensive type of all types of hoaxes. That would take a long time and I don’t think we are at the best time to reform the Penal Code “, explained Borja Adsuara, professor and expert lawyer in Law.
In November 2020, the Government published its ‘Procedure for action against disinformation’, which established the creation of a commission to decide when a news item is ‘fake news’.
Weekly listings to block download pages
In April 2021, the Government reached an agreement with the Coalition of Creators, the employers’ association DigitalES and the main telecommunications operators to pursue download websites. Among the measures, a technical committee is established whose task will be to prepare weekly lists of websites that replicate the contents of others already indicated by previous judicial decisions. A committee in charge of managing the blocking of websites without going through the judge.
Spain has until June 7, 2021 to transpose the European copyright directive. For this, the Uribes Law will be implemented, in reference to the Minister of Culture José Manuel Rodríguez Uribes. Through a new reform of the Intellectual Property Law, the controversial copyright directive will be incorporated that will allow platforms, such as Google itself, to censor content without requiring prior judicial approval.
Organizations such as Wikimedia, Creative Commons, Xnet and other entities have warned of its effects and fear that a “transposition not respectful of fundamental rights” will be made. As described by the PDLI, this ‘Uribe Law’ will impose “prior internet censorship and content control by robots (automatic filters) without guaranteeing human review or judicial control. “
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