Cyber Security / Cyber Crime, Defamation / Reputation, Hate Speech, National Security, Political Expression
The Case of Ampon Tangnoppakul (Uncle SMS) (2011)
In Progress Contracts Expression
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The Spanish Supreme Court confirmed the conviction and sentence of a Spanish rapper on charges of hate speech and incitement to terrorism. The rapper had made public audio and video archives of his songs which included lyrics valourizing groups regarded as terrorist and calling for violence against politicians and the Spanish royal family. The Court held that the lyrics constituted criminal offences because they created an atmosphere of fear and anxiety and that it was irrelevant that the rapper did not intend to harm any person. The Court found that imprisonment was a proportionate response and confirmed the lower court’s sentence of three and a half years’ imprisonment.
In 2012 and 2013, a Spanish rapper, Jose Miguel Arenas (known as Valtonyc), released audio and video archives which were available to listen online for free. The lyrics in some of the archived audio referred to actions of the Euskadi Ta Askatasuna (ETA), a Basque separatist group, and to the First of October Anti-Fascist Resistance (GRAPO), a Marxist-Leninist republicanist group – both of which are considered by the European Union to be terrorist organizations. These lyrics supported and praised the groups, justified their existence and called for a continuation of their activities. Other lyrics mentioned murdering some members of the government and the Spanish royal family.
As a result of these statements contained in the lyrics, criminal charges were brought against Valtonyc under articles 578 and 579 of the Criminal Code for “exalting terrorism and humiliating its victims”, and under article 169.2 of the Code for “slandering and insulting the Crown”. The criminal case came before the National Audience Court in Madrid.
The National Audience Court referred to various Spanish and European Court of Human Rights (ECtHR) judgments in reaching its decision to convict Valtonyc. It referred to a decision from the Spanish Constitutional Court, STC 136/1999, which had held that as threatening some citizens or voters infringes the rights of those individuals and threatens the development of a free society it is not a legitimate exercise of the right to freedom of expression. The Court also made reference to the Constitutional Court’s judgement in STC 112/2016 which had defined hate speech as “speech inciting violence or discrimination against certain groups” and held that criminalizing such speech was a legitimate limitation of the right to freedom of expression. The National Audience Court accepted the test set out in the Constitutional Court’s decision in STC 177/2015 that, when determining whether an expression of opinion is permissible, a court must determine whether the expression is of a political opinion meant to stimulate public debate or an expression of personal hatred and intolerance as the latter cannot be protected by the right to freedom of expression. The Court also referred to the ECtHR decision in Hogefeld v. Germany which had accepted that freedom of expression can be limited to prohibit public incitement to commit terrorist acts.
The National Audience Court noted that Valtonyc could not “ignore the capacity of some of his song lyrics to create fear and anxiety … no matter his intention or ability to commit such acts nor the victim’s appreciation of the probability that the threatening facts happens”.
Accordingly, the Court held that the offences were legitimate limitations to the right to freedom of expression and that the right cannot be used to justify any incitement to commit a terrorist act. The Court convicted Valtonyc and sentenced him to three and half years’ imprisonment.
Valtonyc filed a cessation complaint before the Spanish Supreme Court, arguing that the National Audience Court’s decision infringed his right to freedom of speech as the lyrics were merely his exercise of artistic creativity and so an exercise of freedom of expression.
The central issue for the Supreme Court to determine was whether Valtonyc’s conviction and sentence were a justifiable limitation to his right to freedom of expression.
Valtonyc argued that the conviction and sentence infringed his right to freedom of expression under article 20 of the Constitution, article 10 of the European Convention on Human Rights, article 19 of the International Covenant on Civil and Political Rights and article 29(2) of the Universal Declaration of Human Rights.
The Court examined the offence of hate speech under article 578 and noted that the Constitutional Court, in 112/2016, had already determined that the way in which the provision excluded hate speech from the protection of the right to freedom of expression was a justifiable limitation to the right. The Constitutional Court in that case had defined hate speech as speech that encourages – even indirectly – a situation of risk to the safety of others, threatens the exercise and enjoyment of the rights of others, or threatens the broader societal system of fundamental liberties. The Court added that this meant that the question before it in the present case was factual, namely whether Valtonyc’s lyrics constituted hate speech, and so it had to determine whether the lyrics did create such a risk.
However, the Court emphasized that a conviction on these offences did not require the commission of such conduct to realize the risk as the Court noted that “such risk has to be understood in abstracto, as an incitement to commit violent acts, and not only as the concrete commission of such acts”. Accordingly, the Court held that even though Valtonyc did not commit violent acts his lyrics constituted a risk that such acts could be committed because “the song lyrics … praising terrorist organizations such as ETA … and their violent actions … are an incitement to the imitation of such acts”.
In assessing the offence of “slandering and insulting the Crown” under article 169.2 the Court referred to the Constitutional Court decision 19/1987 which had held that “the King is a public personality and an institution that justifys a particular protection”. The Court referred to a set of Valtonyc’s lyrics – “Juan Carlos used his brother as a target” which referred to the king’s brother who had been shot and killed in unknown circumstances – and, with reference to the European Court of Human Rights cases of Standard Verlags mbH v Austria and Van Hannover v Germany, held that the lyrics were personal and not political criticism and therefore were not protected by the right to freedom of expression. The Court accepted that although freedom of expression offers particular protection to political speech this does not extend to criticism about political figures’ private lives. The Court mentioned the Spanish Constitutional Court decision of STC 107/1988 which had held that insults that “are unnecessary to express in public” cannot be protected by the right to freedom of expression.
The Court evaluated the offence of threats to a Spanish politician (also under article 169.2) in respect of Valtonyc’s lyrics “Jorge Campos [the leader of the extreme-right wing and anti-Catalan political party el Circulo Balear which is now referred to as Actùa] deserves a nuclear bomb”, “we want the death of those pigs”, and “we are going to cut his throat”. The Court accepted the National Audience Court’s finding that the lyrics should be interpreted in abstracto and so held that it was irrelevant that Valtonyc had argued that he did not intend to threaten Jorge Campos because the lyrics posed a risk of incitement. The Court emphasized that it was the “intimidating content of the lyrics and their ability to create fear and anxiety” that rendered the lyrics hate speech.
The Court, like the National Audience Court, made reference to the ECtHR case of Hogefeld v. Germany which accepted that freedom of expression can be limited when it comes to public incitement to commit terrorist acts. The ECtHR had referred to article 5.1 of the European Council Convention on the Prevention of Terrorism which defines the public provocation to commit a terrorist offence as “the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed”
The Court also referred to two Spanish Constitution Court decisions, STC 136/1999 and STC 177/2015, and to the ECtHR case of Otegi v. Spain, which had held that the Criminal Code provisions punishing speech offences by imprisonment are a proportionate limitation to the right to freedom of expression because hate speech and public incitement to commit violent acts threaten the enjoyment of other fundamental rights.
The Court confirmed the conviction and sentence of three and half years of imprisonment.
NOTE: Valtonyc was expected to surrender himself to the authorities voluntarily in May 2018 but he fled to Belgium. Spain has attempted to have him extradited from Belgium but on September 17, 2018 the Belgian Tribunal of Gand (Ghent) rejected the extradition request finding that Valtonyc’s lyrics could not be considered as incitement to terrorism under Belgian law. The Public Prosecutor of Gand (Ghent) appealed this sentence, arguing that extradition should be granted. This appeal is still pending.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment contracts expression by entrenching the use of criminal sanctions against statements insulting political figures and the monarchy and for inciting terrorism. The Spanish Supreme Court applied a low standard for ascertaining hate speech, holding that speech which creates only “fear and anxiety” constitutes hate speech and ruled that a criminal sanction of imprisonment is a proportionate response to hate speech and incitement to terrorism.
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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