Spain’s Gag Law: Watch What You Say

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If you’ve been anywhere near downtown Barcelona over the past few months, you’ve witnessed the protests in support of a rapper named Pablo Hasél. Barcelona is a city known for its willingness to take to the streets for social and political causes, but this particular story attracted so much attention that it was also carried on international news outlets around the world.

Hasél, born Pablo Rivadulla Duró, is a rapper who was sentenced in 2014 to two years in prison for lyrics and tweets that, according to Spain’s “gag law,” glorified terrorism and slandered the crown and other state institutions. His sentence was suspended, but he was tried again in 2018 for similar crimes.

Instead of handing himself over to the authorities in February to begin his nine-month prison sentence, he barricaded himself inside the rector’s building at the University of Lleida along with a number of his supporters. Activists clashed with police in the streets outside before Hasél was eventually arrested and taken to prison on February 16, 2021.

Protests in support of Hasél occurred both before and after he was incarcerated, with his supporters claiming his right to freedom of speech. While some have taken place without incident, others have turned violent, leading to clashes with the police, injuries, closures of streets and metro stations and property destruction.

Hundreds of people marched in Barcelona on March 16, 2021, on the anniversary of Hasél’s first month in jail. Numerous other cities also have organized demonstrations all over the rest of Spain, including, Girona, Tarragona, Lleida, Palma de Mallorca, Alicante, Cáceres, Madrid, Cartagena, Malaga, Gijón, Zaragoza and León. In Madrid the number of people marching reached around 1,000.

Ironically, the rapper’s arrest gave him, his lyrics and his social media posts a level of visibility that he didn’t have before. His audience is now hundreds of thousands of people worldwide, and both his conviction and resistance to arrest have sparked international controversy.

On one side of the debate, you’ll find people who say that Hasél’s lyrics are violent and offensive, his ideas are hateful and that he shows a complete lack of respect for authority as well as for victims of terrorism. They’ll say that he’s a bad person, and that he’s also been arrested for other offenses outside the scope of the ley mordaza in the past, society is better off without him.

On the other side, you’ll find those who believe that—to paraphrase author Salman Rushdie—no one has the inalienable right not to be offended, that saying vicious things is not the same thing as perpetrating a violent act, and that free speech without fear of reprisals from the state is essential to a democracy, especially when it comes to the realm of music, art or journalism. These people will argue that being a disagreeable person or even a criminal under other laws is not adequate justification for putting draconian limits on a citizen’s right to speak.

So what kinds of protections exist (or don’t) for freedom of speech in Spain? What is the nature of the controversial gag law and why did this particular rapper become the newest face of the movement for legal reform?

La Ley Mordaza

In Spanish it’s colloquially called “la ley mordaza'' and in English it’s known as the “gag law,” though its official name is the Orwellian-sounding Citizens’ Security Law (la Ley de Protección de Seguridad Ciudadana) or La Ley Orgánica 4/2015 de 30 de marzo. It was a part of the 2015 reform of the Spanish penal code, which hadn’t been updated in a decade.

The law is actually an umbrella of ambiguous punishable offenses, and it can be applied in discretionary ways by the police or by the National Court (la Audiencia Nacional), a court dedicated to terrorism and drug-smuggling cases. The law covers a broad range of offenses ranging from the bureaucratic (losing your DNI three times in a single year), to the undeniably logical (shining a laser light into a train conductor’s face), to the repressive (making a joke about religion on social media). Fines can range from €100 to €600,000, depending on the severity of the offense, and can be imposed along with jail time.

When the law was implemented it made waves around the world, with international press outlets such as The New York Times saying that a number of the law’s articles harkened back to the kind of state-sponsored repression seen under Franco, and was “not something you’d expect to happen in a democratic country.”

One of the biggest criticisms of the law is the latitude that is placed in the hands of the government, the courts and the police when it comes to determining how and when to apply the law and what sanctions to impose. That, in combination with Spain’s notoriously slow legal system and the presumption that the accused is guilty until proven innocent—“statements by public officials in the exercise of their function are presumed to be true unless proven otherwise,” says the law in question—stacks the deck against an individual’s chances of fighting an accusation under the gag law.

Another controversial part of the law is the creation under Article 43 of a national Central Registry of Offenses Against Security by the Ministry of the Interior, and the permission for creation of other similar registries in autonomous communities. This registry is supposed to collect statistics on recidivism when it comes to offenses governed by the gag law, but the implications of a database of people that have been convicted for crimes of freedom of expression has raised alarms.

La ley mordaza touches a particular nerve in Catalunya, as the debate over the law often gets mixed in with arguments over other social and political issues, such the Catalan independence movement. The prohibition by the Spanish government of the 2017 referendums is seen as a repression of freedom of expression by those in favor of independence, as is the jailing of the leaders of the independence movement in 2019.

Hasél Is Not Alone: Artists Convicted or Investigated under the Gag Law

A number of other performers, writers, and “influencers” have been convicted under one stipulation of the law or another, and according to statistics gathered by the NGO FreeMuse, Spain was the country that sentenced the highest number of artists to prison in the year 2017—ahead of countries known for their repressive regimes such as China, Iran, Egypt and Turkey.

This legal paradigm in Spain started to shift even before the law was put into place in 2015. One of the best-known cases is a woman known as E.M., who was convicted of blasphemy for leading the “rebellious chumino” procession in Malaga, in which a group of feminists dressed a large plastic sculpture of a vulva as if it were the Virgin Mary and paraded it down the street on an International Women's Day demonstration in 2013. By agreeing to pay a heavy fine, further charges of “provocation of discrimination, hatred and violence” were dismissed.

Two puppeteers known for their political commentary, Alfonso Lázaro and Raúl García, were arrested in Madrid in 2016 in which one of their puppets held up a sign saying “long live ETA/Al-Qaeda.”

César Strawberry, a member of Spanish rap-rock band Def Con Dos and known for his explicit lyrics, was convicted in 2017. The same year, twelve members of the rap group Insurgencia each received two-year jail terms for glorifying terrorism in one of their songs.

Evaristo Páramos, singer of punk band La Polla Records, has sung songs against all possible symbols of authority throughout his forty-year career. He was detained during a music festival for insulting the police in an onstage rant in 2018.

Mallorcan rapper Josep Miquel Arrenas, known as Valtònyc, was sentenced to a three-and-a-half-year prison term in 2018 for glorifying terrorism and insulting the monarchy in his lyrics. He fled the country rather than turn himself in, and a Belgian court refused to extradite him back to Spain. One of his lawyers, Gonzalo Boye, was quoted by Spanish news agency Efe as saying: "The judge understands that this is a case of freedom of expression and that none of the phrases in his songs contained criminal content."

Arrenas’ conviction sparked a nationwide movement for freedom of expression in Spain called No Callaremos, known locally as No Callarem, as the movement began in Catalunya.

Hasél is the latest high-profile conviction.

Journalists and Influencers

Spanish journalists have been convicted for a whole slew of offenses under the gag law, most notably Cristina Fallarás, Natalia Díez and Mercè Alcocer. Fallarás was fined €600 for “disobeying authority” when she stepped off the sidewalk during a legal demonstration in support of journalists killed in Mexico. The entire street was blocked by a police car so that the demonstrators could move freely on that particular street without the danger of obstructing traffic, but Fallarás was challenged by a police office when she momentarily stepped from the sidewalk to the street. According to the citation, Fallarás also screamed at the police and incited others to break the law, which according to witnesses she did not do.

Natalia Díez was fined €700 for “lack of respect and obstruction” when she came upon three policemen asking several foreign men for identification. She identified herself as a journalist, took photos and asked what was going on and was told it was an anti-terrorist operation. She was also told that if she published her photos she would be fined. Even though she handed over her contact details willingly and didn’t publish anything, no articles or images she received a fine in the mail anyway.

Mercè Alcocer was fined €600 for "disobedience to the authorities.” She was at the National Court covering the Jordi Pujol court case for Catalunya Ràdio. When she saw Pujol walking from one room to another, she followed him out the exit door to try to get a statement for her piece. The police stopped her, saying that the press couldn’t access that area of the court, even though the area was not marked as a restricted zone. She turned back without putting up a fight, but when she then tried to get into the press area she wasn’t allowed in and was fined. A TV3 video confirms the details of her story.

Two journalists in Sevilla were penalized when the police had an issue with the way they were covering a religious procession. José Manuel de la Linde and Antonio Cattoni, both from Canal Sur Radio, were accused of "disturbing public order” and each fined €600.

Basque reporter Mikel Sáenz de Buruaga was hit and pushed when recording footage of a police intervention in the Errekaleor neighborhood of Vitoria. Despite showing the police his press accreditation, his phone was broken and he was fined €602.

Influencers—posting the sometimes silly, sometimes shamelessly attention-grabbing content that influencers always post—have run into trouble as well. Twitter users María Lluch Sancho and Cassandra Vera were both convicted of glorifying terrorism for making jokes on Twitter about the 1973 assassination of Franco’s second in command, Luis Carrero Blanco. Vera was later acquitted on appeal to the Supreme Court.

A 24-year-old man in Jaén was fined €480 when he posted a photo of a wooden statue of Jesus with his face Photoshopped onto it. Drag artist Drag Sethlas was also investigated for causing offense to religious sentiment—all in the same year in which a United Nations special report called for the repeal of any and all anti-blasphemy laws that were still in force around the world.

Reporters Without Borders pointed the finger at the gag law as one of the main obstacles to exercising freedom of the press in Spain. Non-profit organization The Platform in Defense of Freedom of Information (La Plataforma en Defensa de la Libertad de Información, or PDLI) calls the law “camouflaged censorship” and points out that the Spanish Ministry of the Interior has an incentive to impose fines due to the hundreds of millions of euros in government revenue its penalties have generated since 2015. Spain’s national human rights ombudswoman also lodged an official complaint that the sanctions imposed on journalists do not conform to Spain’s constitutional requirements.

National and International Criticism for the Gag Law

Human Rights Watch, Amnesty International, other international governmental and non-governmental organizations, and press outlets from all over the world have all expressed their concern over the Citizens Security Law. For example, the European Court of Human Rights has condemned Spain on three occasions for punishing citizens for insulting the Spanish monarchy, stating that the law is not compatible with the European Convention on Human Rights.

On the fifth anniversary of the passing of la ley mordaza, the hashtag #5AñosDeMordazasBasta (“five years of gags enough already”) was trending on social media, and 230 organizations around the globe signed a manifesto urging the Spanish government to repeal the law. Amnesty International was one of the driving forces behind the manifesto, saying: “Because tomorrow it could be you… So that we can all freely exercise our freedom of expression, it is essential that you join the fight to end the gag law.”

Due to the flood of legal cases against artists and others, the PDLI branded 2017 “the year of crimes of opinion.”

“It is hard to find in Spain’s recent democratic history a precedent for the degree of repression against free expression,” said PDLI President Virginia Pérez Alonso in an interview for a report by the International Press Institute. “People have been sent to jail for songs and tweets. It happened in Europe in the 21st century. The fact that we are taking so long to process this development is very serious.”

As of 2021 Spain’s statistics on freedom of speech have improved, but they still have a long way to go. When Pablo Hasél was arrested more than 200 artists, including internationally-acclaimed film director Pedro Almodóvar and actor Javier Bardem, signed a petition in protest. Amnesty International tweeted that Hasel's arrest was terrible news for freedom of expression in Spain.

Proposed Reforms

A reform of la ley mordaza has been pending for approximately three years, with the Basque political party (PNV) and the Spanish Socialist Party (PSOE) leading the call for change, and PP and Vox—Spain’s right-wing political parties—fighting to keep the law as it is.

The most recent PNV initiative was proposed in September 2020, and asked for changes in 44 articles of the law. The PP attempted to veto the reform, and requested an intensive study of the law’s application from 2018 through 2020 before considering the possibility of reform.

Spanish President Pedro Sánchez, who is ostensibly in favor of the reforms, explained that their objective would be to eliminate the articles that “disproportionately limit, the exercise of the rights of assembly, demonstration and freedom of expression.” He has drawn criticism for having promised these reformed before he was elected and failing to make progress in the years since.

The latest version of the proposed changes, announced just five days after Pablo Hasél was taken to prison, suggest that "verbal excesses" in the context of artistic, cultural or intellectual manifestations should remain outside the scope of criminal punishment, as should insults to the crown, glorification of terrorism and offenses against religious sentiments. It would decriminalize some (not all) crimes related to the right to freedom of expression and penalize only behavior that "clearly involves a risk to public order or the provocation of some type of violent conduct.” These would theoretically be punishable only with fines, not with jail time.

Debates occurred as recently as February 2021, but it appears unlikely that the reforms will happen this year. PNV representative Mikel Legarda is one of the main proponents for change, arguing that the law’s current form does not create a reasonable balance between the security of society and individual citizens’ fundamental rights.

However, Interior Minister Juan Ignacio Zoido was quoted by the BBC as saying he wanted the law to remain in place as-is because “we have to fight against any sign of extremism or intolerance.” Spain's Professional Association of Magistrates (APM) says that "freedom of speech is not an absolute or unlimited right.”

Both sides have dug in, but Hasél is still in jail, Valtònyc is still in exile in Belgium, and for the moment, we all have to watch what we say.