Cyber Security / Cyber Crime, Defamation / Reputation, Hate Speech, National Security, Political Expression
The Case of Ampon Tangnoppakul (Uncle SMS) (2011)
Closed Contracts Expression
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The Spanish Supreme Court affirmed a lower court’s decision finding Spanish singer Baltasar Adolfo guilty of glorifying terrorism, humiliating victims of terrorism and criminal defamation of the Spanish Crown. Throughout 2012 and 2013, Adolfo wrote, performed and posted online various songs with lyrics that endorsed terrorist organisations, such as the First of October Anti-Fascist Resistance Groups (GRAPO) and Euskadi Ta Askatasuna (ETA), and further called for violence against the Spanish Monarchy and Government. The Court recalled case law of the European Court of Human rights which protects offensive or disturbing speech, even against the Monarchy, but concluded that the lyrics did not constitute political criticism. Rather, the lyrics were extreme enough to reach a threshold for incitement to violence and insult in violation of Article 20 of the Spanish Constitution.
Throughout 2012 and 2013, Baltasar Adolfo, a Spanish singer-songwriter, wrote and performed various songs supporting terrorist organisations GRAPO, ETA and their members. These songs were published publicly online. The song lyrics, which mainly opposed the Crown and members of both the Central Government and the Autonomous Governments, justified the terrorists’ actions and incited future violence.
The songs contained phrases such as “Bernardo Isidoro deserves a nuclear destruction bomb”; “we want these pigs dead”; “we want fear to knock at your doors with flames”; “let’s see if ETA puts a bomb and explodes”; “I want to convey to the Spaniards a message of hope, ETA is a great nation”; “Baby, I don’t support free violence, but justice would be to pass them through the guillotine”; “the King has an appointment at the town square, a rope around his neck and the weight of the law will fall over him”; among several others.
Adolfo was prosecuted under Articles 578 and 579 of the Spanish Penal Code for glorifying and humiliating victims of terrorism. He was also found guilty of criminal defamation against the Spanish Crown, under Article 490.3 of the Spanish Penal Code. Consequently, the “Audiencia Nacional”, the highest national criminal court, which deals with serious crimes, sentenced him to 42 months imprisonment.
Adolfo’s defence appealed the Audiencia Nacional’s judgement to the Supreme Court on the grounds that the sentence contravened Article 20 of the Spanish Constitution and Article 19 of the International Covenant on Civil and Political Rights, given that the composition of the songs in question was legitimate under his right to freely disseminate opinions and ideas. The defence also argued the use of the Spanish Penal Code to condemn was unecessary.
Firstly, the Supreme Court considered that, according to constitutional jurisprudence, the right to freedom of expression occupies a preeminent position in every democratic system. However, it recalled that said right is not absolute, but rather, it is subject to limitations whenever it comes into conflict with other constitutional rights or interests. For instance, freedom of expression does not cover expressions that reach a threshold for hate speech and can be interpreted as incitement to violence and discrimination against specific groups, for example.
The Court referred to the European Court of Human Rights (ECtHR) to assert that “tolerance and respect for all human beings” constitutes the foundation of a democratic and pluralistic society. [p.6] In this regard, the Court considered it necessary to impose sanctions in order to prevent all forms of expressions that are incompatible with the democratic principles.
The Court then referenced the ECtHR case of Hogefeld v. Germany to remind us that incitement to commit terrorist acts cannot be protected under freedom of expression. Thus, the restrictions imposed upon certain messages are consistent with The European Convention on Human Rights insofar as they may constitute an indirect incitement to commit terrorist offenses.
The Court also made reference to an earlier decision, STC 177/2015, to justify the constitutionality of the sanctions imposed under Article 578 of the Spanish Penal Code. According to the judgment, the use of said article is a legitimate restriction since the exaltation of terrorist acts can be considered as a manifestation of hate speech which endangers the democratic system.
The Court also referred to the jurisprudence of the ECtHR to indicate that freedom of expression becomes more valuable when it deals with offensive or disturbing speech. According to the ECtHR, political criticism, even hurtful and offensive, against the King and the monarchical system, is protected under freedom of expression provided that it is conducted within the limits of said right. However, the Spanish Court recalled that defamatory expressions are outside the constitutional scope of the right to freedom of expression. In other words, expressions that “in the specific circumstances of the case are offensive or opprobrious” are not protected under article 20 of the Spanish Constitution. [p.9]
The Court considered that, in the present case, the lyrics did not constitute a political criticism against the monarchical system, which would be protected under right to freedom of the expression. According to the Court, the content of the songs “insult, slander and threaten the King to death or to members of the Royal Family” [p.11]. The Court held that even if Adolfo did not have the intention to threaten the Crown, they could not ignore the intimidating content of his songs and their likelihood to cause fear.
Consequently, the Supreme Court confirmed the lower court’s decision and found Adolfo guilty of glorifying terrorism, humiliating victims of terrorism and criminal defamation of the Spanish Crown.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment contracts the right to freedom of expression in Spain as it applies criminal sanctions to artistic political opinions. In this decision, the Spanish Supreme Court focused more on the criminal aspect of the songs, such as defamation, rather than the need to protect individuals human rights, such as freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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