Content Regulation / Censorship, Hate Speech, National Security
Government of Kazakhstan v. Respublika
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The Constitutional Court of Spain revoked the judgment of the Supreme Court that had sentenced a Spanish singer and songwriter to one years’ imprisonment after the singer published a series of tweets seeming to support two terrorist groups. The ruling of the Constitutional Court considered that the decision of the Supreme Court did not take into account the prefered position that freedom of expression occupies in any democratic society and the repressive nature of criminal sanctions which should be applied as the last resort of the judiciary.
Between November 2013 and January 2014, César Montaña Lehman, known as “César Strawberry”, a Spanish singer and song writer of the groups Def Con Dos and Strawberry Hardcore, published six controversial messages on Twitter. César Strawberry, who has also published five novels and worked as a scriptwriter, actor, director and producer in various films and in television, is critical in his writing and his lyrics are characterized by his provocative, ironic and sarcastic tone where he uses action and horror stories to get the attention of the audience.
The tweets related to the armed group GRAPO (First of October Anti-Fascist Resistance Groups) and the former prison guard José Antonio Ortega Lara, who was kidnapped by the ETA (Basque Homeland and Liberty). Both GRAPO and the ETA are deemed terrorist groups by the European Union and César Strawberry’s tweets appeared to support the groups: one of the tweets expressed approval of Ortega Lara’s kidnapping as it read “Ortega Lara should be kidnapped now”.
As a result of the tweets, César Strawberry was charged with glorifying terrorism and humiliating its victims under article 578 of the Spanish Criminal Code. He was acquitted by the First Criminal Chamber of the National Audience (Sección Primera de la Sala de lo Penal de la Audiencia Nacional) but the Prosecution Ministry filed a cassation appeal to the Supreme Court of Spain.
The Supreme Court held that the right to freedom of expression did not extend to support for terrorism as that infringed the enjoyment of other citizens’ rights and forced victims of terrorism to relive their traumatic experiences. The Court emphasized that freedom of expression does not protect expression that humiliates or holds in contempt victims of terrorist attacks. It noted that in its determination it had to take into account whether César Strawberry’s tweets would be offensive to those who have suffered from terrorism. The Court held that the right to freedom of expression does not extend to threats against citizens because such expression infringes the freedom of others and does not contribute to the construction of a free and informed public opinion.
The Court also examined the impact of modern technology and how the dissemination of messages of hate and violence through this new technology can increase the impact and potential damage of the message “through successive and renewed acts of transmission” [p.11]. The Court said that this impact, along with the fact that the messages can be transmitted across international borders, must be considered when assessing the lawfulness of the speech.
Accordingly, the Court held that César Strawberry’s tweets met the requirements for criminal sanction under article 578 of the Penal Code. The Court noted that the fact that he is known as a singer and song writer whose lyrics are characterized by his provocative, ironic and sarcastic tone does not discharge him of liability. The Court held that “affirmations such as those disseminated in the network by César Montaña feed hate speech, legitimize terrorism as means of resolving social conflicts and, more importantly, force the victims to remember the lacerating experience of the threat, the kidnapping or the murder of a close relative” [p. 22].
The Court sentenced him to one year of imprisonment for the glorification of terrorist acts and the humiliation of its victims and six years and six months to absolute barring under article 579.2 of the Criminal Code. Consequently, Strawberry challenged the decision before the Spanish Constitutional Court on the grounds that he did not intend to humiliate the victims of terrorist groups or to promote or justify terrorism.
The central issue before the Constitutional Tribunal of Spain was whether the prison sentence imposed against César Strawberry violated his right to freedom of expression.
The Court made reference to an earlier decision, STC 112/2016, in which the Court defined freedom of expression as a fundamental guarantee for “the formation and existence of a free and public opinion” . However, the Court argued that freedom of expression is not an absolute right because, as any other right, it is subject to limitations. As such, any democratic society should prevent all forms of expression that incite or justify hatred and the imposition of ideas through violent means.
The Court went to argue that the use of criminal sanctions against the right to freedom of expression should be the last instrument to resort as it could constitute a disproportionate measure that causes a discouraging effect. The Court noted that the limits to which the right to freedom of expression is subject must always be rigorously weighed, taking into account the preferential position that freedom of expression occupies when it comes into conflict with other fundamental rights.
The Court recalled the case law of the European Court of Human Rights (ECtHR) which has addressed the existing tensions between the use of criminal sanctions and the right to freedom of expression. Accordingly, freedom of expression is not an absolute right “since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society” .
In this regard, the Court referred to the case of Leroy v. France from the ECtHR to indicate that criminal sanctions imposed against the exercise of the right to freedom of expression “could be justified when it can be inferred that said conducts pose a risk to national security, territorial integrity or public safety, defense of order or crime prevention” [p. 27]. As stated by the EctHR, these sanctions applied when the conduct involves hate speech or the use of violence to achieve political objectives.
The Court then referred to the principle of proportionality when restrictions or penalties are imposed against the right to freedom of expression by the judiciary. The Court noted that, when assessing the lawfulness of the expressions, criminal judges should consider whether they are protected under the right to freedom of expression. For the Court, judges cannot “react disproportionately against the expression, even if it does not constitute a legitimate exercise of said right and even when it is legitimately prescribed as a penalty under criminal law” .
The Court determined that, in the instant case, the lower court decision did not carry out a rigorous examination of the principle of proportionality. The Court added that the instance judge ignored whether the conduct prosecuted was a legitimate manifestation of the exercise of freedom of speech, thus violating the defendant’s constitutional right. On this subject, the Court noted that “not every excessive exercise of the right to freedom of expression” constitutes a criminal offense [p. 31].
The Court made reference to the Supreme Court’s argument related to the impact and damage caused by the use of new technologies. According to the judgment, the Supreme Court’s reasoning was insufficient as it did not consider the importance of the exchange of opinions that occur in the digital realm and the effects that criminal convictions can have upon the exercise of online freedom of expression.
Although the appealed decision stated that it was irrelevant to consider whether the messages had a provocative intention, the Court noted that sarcastic and metaphorical speeches are part of the right to freedom of expression. It also added that the mere fact that statements are unpleasant or cause offense to certain groups does not justify criminalizing them.
Consequently, the Court reversed the Supreme Court’s ruling as it considered that prison sentence imposed against César Strawberry violated his right to freedom of expression.
 Spain, STC 112/2016
 ECHR, art. 10
 Spain, STC 89/2010
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands the right to freedom of expression because it decriminalizes sarcastic and metaphorical expression on Twitter. In its judgment, the court made it clear that these types of expressions fall outside the scope of criminal law. However, since the dismantling of ETA, trials for glorying terrorism have multiplied in Spain. According to a group of experts, since the enactment of the article of the Spanish Criminal Code that criminalizes the exaltation of terrorism offences, different individuals have been convicted of posting messages and jokes on Twitter. This criminal convictions ignore the application of the international standards that best protect freedom of expression. As stated by Joan Barata, from the Center for Internet and Society at Stanford University, political and ideological expressions are specially protected speeches, “this includes those that may be offensive or even contrary to the constitutional text itself”.
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