September 19, 2017
A new equality bill is currently being considered by the Spanish Parliament. Despite its stated aim – the fight against discrimination – a closer look reveals a problematic endeavour that would lead to significant infringement of freedom of expression, and far-reaching penalties for those who would not abide by it.
Freedom of expression in international and European law
Freedom of expression is a fundamental freedom, enshrined in Article 19 of the Universal Declaration of Human Rights and of the International Covenant on Civil and Political Rights, Article 10 of the European Convention on Human Rights, and Article 11 of the EU Charter.
But freedom is not only a fundamental human right or a mere value. It is a mechanism by which people interact in society, disseminate information and ideas, receive feedback and input, and ultimately engage in the pursuit of truth and of the basic goods in a democratic society.
In view of that, the European Court of Human Rights (ECtHR) has had a longstanding tradition of protecting various types of expression, including “offensive” ones. In the Handyside case, para 49, the ECtHR explained the importance of freedom of expression to democracy itself:
Freedom of expression constitutes one of the essential foundations of a [democratic] society, one of the basic conditions for its progress and for the development of every man … it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society.’
In contrast to the protection in international law, the proposed Spanish bill undermines freedom of expression and opens the door to wide-ranging State censorship with onerous penalties for violations (determined as “minor”, “serious” and “very serious” infractions).
According to Article 94 (2), a “minor infraction” is “uttering, by any means or method, expressions, images of graphic contents of any kind which are offensive or degrading by reason of sexual orientations, identity, or gender expression or sexual characteristics against LGBTI people or their families.”
Repeating such opinions or posting them online elevates the infractions to “serious”. The penalties foreseen in the law are far-reaching: 3,000 EUR for a single instance, up to 20,000 EUR for repeated expression of a displeasing opinion, or for any violation online.
In Article 94(4) the Spanish bill itself defines “very serious infractions” as:
Calling for public acts by any means or procedures of any kind that have as their objective to promote, encourage, or incite, directly or indirectly, discrimination, hate or violence against people by reason of sexual orientation, identity, or gender expression or sexual characteristics.
Reoffending by publication on the Internet or social media of expressions, images of graphic content of any kind that is offensive or degrading by reason of sexual orientation, identity, or gender expression or sexual characteristics against LGTBI people or their families.
The sanctions for such “very serious infractions” are penalties up to 45,000 EUR, with secondary penalties which can be imposed, such as the cancellation of activities or services for a maximum of two years, deprivation of the corresponding license or authorization, closing of premises for a maximum of two years, temporary disqualification for the provision of public services for up to two years.
With an ever growing number of claimed “gender identities” and “gender expressions”, it is virtually impossible to hold an opinion that would not, in one way or another, have the potential to offend anyone. Additionally, given the vague and subjective definitions of infractions, citizens will avoid engaging in “sensitive” or possibly “offensive” topics for fear that this might lead to criminal investigations. Not only would unpopular, offensive or disturbing views be purged from public life and online sphere, but the Spanish bill would ensure that the perpetrator is not in the position to express them anymore.
The amount of litigation would also increase, and the cost of that is more than just monetary. Even if the courts ultimately rule that a person accused of “hate speech” is innocent, the stigmatization and hardship endured by having to fight the criminal accusations can last a lifetime and destroy a reputation.
Laws like the Spanish one would create a climate of suspicion and mistrust, since everyone can report everyone for alleged “offensive speech”. In reality, the Spanish bill itself calls for thought-policing, as it makes it a crime to do anything less than fully cooperate with authorities investigating offensive speech.
Giving strong protections to freedom of speech does not come without risk – in a society that tolerates a wide spectrum of speech there is always the risk that other citizens will be hurt and offended by what they hear. But it is a price worth paying. A free and diverse society depends on it. Once society accepts that the State can widely censor public debate through coercive criminal law, there is no logical stopping point.ADF International