In 2019, the media and entertainment industry in Spain maintained the upward trend of recent years, and is expected to keep growing in the coming years. Matters such as the exploitation of broadcasting rights, the significant evolution and expansion of new technologies (i.e., artificial intelligence and virtual reality) and, in particular, the total connectivity that consumers currently have thanks to the development of mobile broadband have significantly contributed to this.
Together with this expansion, the industry is undergoing a very significant change with the phenomenon of digitalisation, and the prevision is that these winds of change will continue over the next few years. 5G networks have just arrived in Spain and will entail big changes in the media and entertainment sector, including a significant challenge for existing stakeholders whose role in the industry may be threatened by new players if they do not adapt their businesses to the new trends and circumstances of the market.
II LEGAL AND REGULATORY FRAMEWORK
The Spanish legal system does not rule on media and entertainment in a single code, which would probably help in terms of systematisation and efficiency. The industry is regulated by means of several sectoral sets of rules dealing with its different branches and activities. This regulatory framework is made up of a wide range of laws, royal decrees and regulations of lower range, which are generally governed by the Spanish Constitution; in particular, by those provisions that refer to the exercise and guarantee of fundamental rights (information, honour, privacy, etc.) and other liberties (such as the freedom of entrepreneurship, or the facilitation of proper use of leisure time by the administration). This regulatory system is consistent with the international treaties entered into by Spain, as well as with the relevant EU regulations.
In this regard, the Spanish Constitution acknowledges, in Article 20, the fundamental rights of all citizens to the freedom of expression, the freedom of literary, artistic, scientific and technical creation, the right to academic freedom and freedom of the press. The exercise of these rights cannot be restricted by any type of prior censorship and may only be generally limited in very exceptional cases, such as the states of alarm, emergency and siege. In this same sense, Section 5 of Article 20 stipulates that the seizure of publications, recordings and other means of information can only be executed by virtue of a judicial decision. However, the exercise of these rights shall be coherent and respectful with other rights, such as the right to honour, privacy and self-image and with the protection of youth and children.
Below the Constitution, several regulations are to be taken into account in the media and entertainment sector; inter alia:
- Royal Legislative Decree 1/1996 of 12 April 1996 approving the Intellectual Property Act (the IP Act);
- Act No. 34/2002 of 11 July 2002 on services of the information society and electronic commerce, which transposed EU Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000;
- Act No. 7/1998 of 13 April 1998 on general contracting conditions;
- Act No. 7/2010 of 31 March 2010 on audiovisual communication;
- Act No. 9/2014 of 9 May 2014 on telecommunications;
- Organic Act No. 3/2018 of 5 December 2018 on the protection of personal data and guarantee of digital rights, which gathers and develops the provisions and principles of the EU General Data Protection Regulation;
- Royal Legislative Decree 1/2007 of 16 November 2007 approving the consolidated text of the General Act for the Protection of Consumers and Users;
- Act No. 3/1991 of 10 January 1991 on unfair competition;
- Act No. 34/1988 of 11 November 1988 on advertising;
- Act No. 14/1966 of 18 March 1966 on press and printing;
- Organic Act No. 1/1982 of 5 May 1982 on the civil protection of honour, personal and family intimacy and self-image; and
- Organic Act No. 2/1984 of 26 March 1984 on the right to rectification.
III FREE SPEECH AND MEDIA FREEDOM
i Protected forms of expression
Article 20 of the Constitution lays down the different rights or forms with regard to freedom of expression, and the general limits for the exercise of this freedom. See Section II.
It has been for the courts to determine the extension of this freedom of expression and to resolve the collision of this fundamental right with other constitutional rights that are also worth protecting. The jurisprudence enacted by the Spanish Constitutional Court has defined a system in which a due balance or weight between the constitutionally recognised freedom of expression and the other conflicted right (normally the right to honour and privacy) shall be performed on a case-by-case basis. As a general rule, the right to free speech and media freedom tend to hold a preferred position with respect to these other constitutional rights, and even more in those cases that involve persons who hold a public position, or who develop a profession of notoriety or are subject to public exposure.
Commercial speech is permitted under Spanish law, provided that other relevant provisions (such as those on consumer protection, advertising or unfair competition) are respected. In any case, misleading commercial speech is prohibited. In line with this, restrictions in the promotion of some products (such as alcohol and tobacco) shall be observed, as well as advertising aimed at minors and other vulnerable groups. Companies are thus entitled to promote their products and services using this kind of commercial language within the aforementioned limits.
Hate speech can be criminally prosecuted in Spain provided that the elements foreseen in Article 510 of the Criminal Code are met. The Spanish public prosecutor’s office has a special delegation specialised in the prosecution of hate crimes, including hate speech. According to the last published report (dated 2017)2 of the public prosecutor’s office, in 2017, crimes related to hate speech increased by 26.8 per cent compared with 2016, with most of these being committed through the internet (36.5 per cent), social media (17.9 per cent) and telephone or telecommunication systems (15.4 per cent). As an example, on 9 February 2018, the Spanish Supreme Court confirmed a judgment rendered by the Spanish National High Court that punished a Twitter user to imprisonment for two years and a half for publishing several hate messages against female victims of gender-based murders. In addition, civil protection against hate speech can also be sought by means of the provisions of Organic Act No. 1/1982 if the circumstances so require and warrant it.
The right to freely communicate and to receive truthful information is recognised in the Constitution (Article 20), and on this basis, media operators in Spain enjoy a fair freedom of action in the development of their information tasks, which is guided by the principles of plurality, transparency, free competition and freedom to provide services. This information shall be of public or general interest, and other structural elements of the state, such as the safeguarding of public order or national defence, must be respected, as well as other rights, such as honour and privacy, to the extent appropriate. In addition, there is a certain duty of diligence on journalists regarding how to obtain information and verify sources.
An interesting case that currently involves the extent and limits of the right to information and that is still pending before the courts relates a conflict held between the Spanish Football League and radio broadcasters. At the beginning of the dispute, the broadcasters claimed that they were entitled to enter into the football stadiums and to broadcast matches using the clubs’ facilities for such purpose, on the basis of the right to information, while the League sustained that:
- this right cannot overcome the League’s right to property and freedom of entrepreneurship (also recognised in the Constitution);
- the exercise of the broadcasters rights’ shall not be unlimited; and
- ultimately, the radio rights of football competitions could be marketed.
To bring this dispute to an end, the government amended Act No. 7/2010 on general audiovisual communication and established that the radio broadcasters were entitled to enter into the stadiums to broadcast sport competitions live, entirely and for free, by paying a small amount of compensation to cover the sport event organisers’ direct costs resulting from the exercise of such right. This dispute is being dealt with by the Supreme Court, which admitted a claim from the Spanish Football League to file a request to the Spanish Constitutional Court for a preliminary ruling on the potential unconstitutionality of this Act. On 20 October 2018, the Spanish Constitutional Court admitted the question of unconstitutionally, and is yet to decide whether this legal provision is constitutional or not.
On the other hand, it shall be taken into consideration that Organic Act No. 1/1982 defines ‘illegitimate intrusions’ in the sphere of privacy (Article 7), which shall be respected in newsgathering and publication, and also includes a list of cases that are generally not considered as such kind of intrusion on a general basis.
Article 18.2 of the Spanish Constitution guarantees the inviolability of the personal domicile and restricts access to it subject to the owner or legitimate tenant’s consent, unless a court orders otherwise. In addition, the Criminal Code punishes the entry into a property without due permission, provided that the prerequisites of Article 202 et seq. of the Code are met.
Secrecy of communications is also constitutionally guaranteed, as stipulated in Article 18.3 of the Constitution, with particular emphasis on post and telephone communications, and subject to court decisions. The disclosure of secrets can also be considered a criminal offence in Spain, in the terms foreseen in Article 197 et seq. of the Criminal Code.
iii Freedom of access to government information
Article 105 of the Spanish Constitution recognises the right of citizens to access and know of administrative files and records as long as this does not violate the defence and security of the state, the privacy of persons and prosecution in criminal investigations. This general right is also extended to media.
Act No. 19/2013 of 9 December 2013 on transparency, access to public information and compliance rules on the right of access to public information, and outlines the limits of such right in Article 14. In particular, the right of access can be limited if damage can be caused to:
- national security or defence;
- external relationships;
- public security;
- criminal, administrative or disciplinary prosecution files;
- due process;
- administrative and inspection control;
- economic and commercial interest;
- economic and monetary policies;
- professional secrecy or intellectual property (IP);
- confidentiality or secrecy guarantees in decision-making processes;
- the environment; or
- data privacy.
The application of these limits must be justified and proportionate and must take into account the circumstances of each case, especially the existence of a public or private interest justifying the access.
The exercise of this right of access and the procedure to be followed is foreseen in Article 17 et seq. of Act No. 19/2013. In accordance with the records that have been published in the press, following the enactment of Act No. 19/2013 up to 120 court proceedings have been opened with regard to the government and administration’s refusal to give access to information. These disputes relate to very different issues, such as the disclosure of costs relating to the national TV channel (managers’ salaries and costs of certain productions or the acquisition of rights, etc.) or the disclosure of the President’s travel expenses.
iv Protection of sources
The protection of sources is to be embodied within the professional secrecy foreseen in Article 20 of the Spanish Constitution. In addition, the journalists’ conduct codes also rule on the protection of sources as a duty, which can only be infringed in very limited cases (for instance, when it appears clear that the source has deliberately faked the information or when disclosing the source is the sole way to prevent a serious or imminent harm on persons). The basis for this protection is precisely the general interest and the right to information, as well as the need to preserve the discloser’s identity, to avoid that, in the future, further disclosures are not made for fear of its consequences.
In this regard, it is worth mentioning that, in December 2018, the news agency Europa Press and the Spanish newspaper Diario de Mallorca filed a criminal complaint against a judge who had ordered the police to enter into their newsroom to seize the mobile phones, computers and some documentation of certain journalists, in order to determine the origin of certain information that they had published. This case has not yet been decided and is still under investigation.
v Private action against publication
The Spanish legal system foresees several ways of acting against undue or illegitimate publications, either of a civil or criminal nature.
In the civil field, persons can exercise the actions arising out of Organic Act No. 1/1982, to protect themselves against illegitimate intrusions in their honour, privacy and self-image arising from a publication. They can use ordinary proceedings before the civil courts, the special procedure referred to in Article 53.2 of the Spanish Constitution or, where necessary, the ‘writ of amparo’ before the Constitutional Court. The relief that may be sought by the claimant comprises any and all measures that are necessary to cease the illegitimate intrusion and to restore the claimants full rights, as well as those measures tending to prevent or impede future intrusions. Damages will be presumed if the illegitimate intrusion is accredited. Precautionary measures (including the provisional seizure of the publication) can also be requested. A recent case involving the famous novel Fariña is proof of this. The novel was seized by a court, which granted the provisional measure requested by a town mayor, one of the book’s real-life characters, who claimed that the novel infringed his right to honour. However, this court order was later set aside by the High Court.
Also within the civil jurisdiction, it is possible to exercise the right to rectification in accordance with Organic Act No. 2/1984. A person is entitled to receive rectification of information disclosed in media of facts that he or she considers inexact and that may cause him or her damage. This right is to be exercised in writing before the director of the publication within seven days of the date of publication. If the rectification does not take place within three days of receipt of the aforementioned communication, the aggrieved person can start civil proceedings aimed at achieving a judicial decision ordering the publication to rectify.
Concerning criminal law, the Criminal Code penalises some conduct relating to a publication. The offences of insult and defamation are foreseen in the Code and can be exercised by the aggrieved party that considers that all the elements of the offence concur (see Articles 205 to 216 of the Criminal Code). The offence of disclosure of secrets (Article 197 et seq. of the Criminal Code) or domicile violation can also be committed at the newsgathering stage, provided that the relevant prerequisites foreseen in the Criminal Code are met. The hate crime may also arise out of the publication.
Other actions may be exercised on the basis of other legal provisions if a breach of any of these takes place in a publication (data protection, advertising, unfair competition, etc.); however, the aforementioned actions are the most commonly used.
vi Government action against publication
This is feasible in Spain if the relevant circumstances and conditions allow. In fact, Article 20 of the Constitution enables the seizure of publications if a court so declares. However, the seizure shall be exercised with utmost caution and in respect of other rights. There is not a vast number of cases in recent jurisprudence in which a seizure of this kind at the request of the government has been granted. The public prosecutor’s office is entitled to request the seizure of a publication to the courts, but it is for the competent judge to decide.
One of the leading cases in actions of this kind in Spain was the publication in the satirical magazine El Jueves of a comic strip with images of the current king and queen of Spain, which were held by the public prosecutor’s office as defamatory. The publication’s seizure was requested and finally agreed by the judge. The decision of the judge and the initiative of the prosecutor were not exempt from criticism and, again, brought an extensive debate on the coexistence of the freedom of expression and the right to honour, and on the limits of satirical jokes and publications.
IV INTELLECTUAL PROPERTY
i Copyright and related rights
Royal Legislative Decree 1/1996, which approves the IP Act, is the main tool in the Spanish system concerning the protection of copyright. This Act has been successively modified, with the most recent important modification being that arising out of Act No. 2/2019 of 1 March 2019. With this modification, Directive 2014/26/EU of the European Parliament and Council of 26 February 2014, and Directive (EU) 2017/1564 of the European Parliament and Council of 13 September 2017, are transposed to the Spanish legal system.
These regulations deal with, inter alia:
- the nature, content and limits of authors’ personal and wealth-related rights;
- the kind of works worthy of protection;
- the rights of exploitation;
- compensation for private copies;
- the duration of IP-related rights;
- the transfer of rights on an exclusive and non-exclusive basis;
- IP-related agreements (management agreement, etc.);
- audiovisual works, software and data file protection;
- rights of producers and radio broadcasters;
- photographic rights;
- the collective management of rights;
- the IP register; and
- actions for protecting IP rights.
Apart from the civil actions specifically foreseen in the IP Act (Article 138 et seq.), in some cases, the infringement of IP rights is considered as a criminal offence under Spanish law (see Article 270 et seq. of the Criminal Code).
ii Personality rights
Act No. 34/1988 on advertising, aims to guide advertising practices in avoiding contravening the dignity of individuals, the values and rights recognised in the Constitution, and protecting certain groups against potential abuses taking advantage of their inexperience or credulity (e.g., minors). Conduct such as subliminal, deceptive, unfair and aggressive advertising are prohibited, and specific actions to seek protection in the case of infringement also exist (by reference to those established by Act No. 3/1991 on unfair competition). Rules on advertising-related agreements are also envisaged in said Act.
The provisions of Act No. 34/1988 are understood without detriment to those of Act No. 3/1991 on unfair competition, which will additionally apply.
Other specific provisions on advertising rule on specific sectors and areas of activity, such as tobacco or alcohol. In addition, the codes of conduct approved by the self-regulation of publicity organisations should also be considered.
The fast-moving technical evolution, owing to digitalisation, is also affecting the advertising sector, with the appearance of new publicity forms, such as overprints, transparencies and virtual advertising. In this respect, a judgment issued by the Spanish Supreme Court on 26 February 2018 annulled the resolution of the Spanish Competition Authority (CNMC) of 1 October 2015, in which a sanction of almost €500,000 was imposed on the broadcaster Mediaset for the use of overprints and advertising transparencies during the broadcast of different television programmes; therefore, allowing these with some conditions. While the CNMC understood that compliance with the principles of identification, separation and transparency foreseen in Act No. 7/2010 on general audiovisual communication require that the broadcast of advertising messages interrupts the TV programme in which it is inserted, the Supreme Court considered that European regulations do not require a temporary separation between the beginning of a programme and the beginning of advertising; rather, that it is sufficient that such difference is made on a merely spatial, acoustic or optical basis, and therefore concluded that Act No. 7/2010 demands that the advertising messages are differentiated, not separated, from the programmes through acoustic and optical mechanisms. Therefore, this judgment implies an important change in television publicity techniques.
Furthermore, in recent years, online and digital marketing and advertising have experienced significant growth (in all platforms and devices: internet, mobile, etc.), especially thanks to the implementation of artificial intelligence and data analytics, which allow for the customisation of messages to a very specific target audience.
iii Unfair business practices
The protection against unfair business practices is found in Act No. 3/1991 on unfair competition. These regulations, mainly aimed at protecting fair and loyal competition within the market, foresee several prohibited conducts (inter alia, imitation, confusion, selling at a loss, defeat, aggressive practices, denigration, comparison, exploitation of others’ reputation, violation of rules or secrets, discrimination and economic dependence, illegal advertising) and the actions that can be taken against them. A specific chapter devoted to unfair business practices with regard to consumers is also included in these regulations.
The provisions of Act No. 3/1991 are to be understood and applied without detriment to:
- the provisions of Act No. 17/2001 of 7 December 2001 on trademarks, if a violation of a trademark or other protected sign takes place on the occasion of the relevant unfair business practice;
- the provisions of the IP Act if copyright issues are also involved; and
- the provisions of Act No. 34/1988 on advertising.
Cases of plagiarism in works created by politicians (including the President of the government and the President of the senate) during their time at university have recently come to public attention; however, no judicial proceedings have been commenced in this respect.
V COMPETITION AND CONSUMER RIGHTS
Competition issues are regulated in Act No. 15/2007 of 3 July 2007 on the defence of competition, and the regulations developing this Act (Royal Decree 261/2008 of 22 February 2008), as well as in Act No. 3/1991 referred to in Section IV.iii.
With regard to consumers’ rights, the main rule to consider is Royal Legislative Decree 1/2007, approving the consolidated text of the General Act for the Protection of Consumers and Users.
In the media and entertainment area, Act No. 7/2010 on general audiovisual communication is also taken into account. These regulations provide for certain protection to TV and other media consumers, especially in terms of advertising messages and content and the prevention of abuses. In addition, in this sector, deals affecting companies’ concentration have taken place in past years, which have led the CNMC to check compliance with the defence of competition provisions, to issue the relevant authorisations, and to sanction some of these companies for breach of its conditions. This was the case with the broadcaster Atresmedia, which was sanctioned for the infringement of certain conditions imposed on the merger of its TV channel, Antena 3, and La Sexta, authorised in 2012. Moreover, restrictions on the sale of TV football broadcasting rights (in terms of agreements’ duration, packages, etc.) are also to be highlighted in this respect.
VI DIGITAL CONTENT
From a regulatory point of view, without detriment to the regulations contained in the IP Act and other disperse regulations on this matter (data protection, etc.), the transposition and implementation of the recent Directive (EU) 2019/770, on certain aspects concerning contracts for the supply of digital content and digital services, is expected. This will bring more light to the ruling of digital content in an environment in continuous evolution and change.
The European Court of Justice’s jurisprudence shall also be considered in this respect. For instance, the Decisions of 13 February 2014 (Case C-466/12, Svensson) and 21 October 2014 (Case C-348/13, BestWater) on the use of hyperlinks, which declared that an ‘act of communication to the public’ within the meaning of Article 3.1 of Directive 2001/29/EC only exists if the works at stake are communicated to a ‘new public’. If there is no new public, the authorisation of the copyright holder is not required.
In addition, the use of hyperlinks may also imply other risks in terms of advertising or commercial communications regulations. If the content posted is to be considered as illicit advertising, or infringes personality or consumers’ rights, the relevant provisions on advertising, unfair competition and consumers would apply.
On the other hand, in accordance with Spanish law (i.e., Act No. 34/2002, on services of the information society and electronic commerce, and the Criminal Code) and jurisprudence, in some circumstances, internet service providers and social media platforms may be liable for hosting, aggregating and linking to digital content when they have an actual knowledge or awareness of the illegality of the content. In this regard, in certain circumstances, the Supreme Court has declared such liability; for example, in its judgment 128/2013 of 26 February 2013, a digital newspaper (El Economista) was condemned for having published certain comments in one of its news articles, which were offensive and infringed the personality rights of a popular singer and for not having removed these comments despite the express request of the latter. In this judgment, the Supreme Court ordered the newspaper to remove all the offensive comments, to publish the judgment on the front page of its website for 10 days, and to pay a compensation to the affected person in the amount of €10,000.
VII CONTRACTUAL DISPUTES
In Spain, contractual disputes in the media and entertainment industry are quite common, especially those concerning the ownership and exploitation of TV or radio formats and programmes. As an example, in its judgment 30/2016 of 20 September 2016, the High Court of Madrid partially upheld a first instance judgment that admitted the claim filed by a UK producer and distributor (ITV Global Entertainment Limited) against a Spanish TV channel (Telecinco) by means of which it claimed that by broadcasting a TV show called Pasapalabra, the Spanish broadcaster (that had unilaterally terminated a licence agreement with ITV) was violating the exclusivity rights that it had over the show’s TV format and its name. In this judgment, the Court ordered Telecinco to pay a very substantial compensation to ITV (around €7 million) and to cease in the use, broadcast or exploitation of any kind of the TV format of Pasapalabra. This judgment was appealed by Telecinco to the Supreme Court, which, on 30 September 2019, confirmed the second instance decision.
VIII YEAR IN REVIEW
In 2019, no notable regulatory developments have taken place in the field of media and entertainment; most of the developments relate to case law and jurisprudence. However, the near future should bring a new regulatory framework to comply with recent EU directives. Due attention shall, therefore, be paid to this in the coming months.
New trends in the sector are driven by the new generation’s preferences and by the way they establish and conduct their relationships, as well as by technological progress.
The increase of social networks, the need for an immediate connection through electronic devices (computers, mobile phones, tablets, smart TVs, smart watches and other wearable devices) and the emergence of new ‘products’ (such as virtual reality or e-sports) forces companies to adapt and provide services in a more direct, swift and smooth manner, to access these new potential customers.
Traditional information access channels are facing the big challenge of not falling into obsolescence in an industry where the main constant is change. In line with this, new media are developing quickly, and the influence of big data is apparently unstoppable.
The speed at which the sector is evolving will test not only companies’ ability to adapt to the industry’s changes, but the current legal system itself, which will most probably not adapt to the new realities in an encompassed manner. Law always comes behind reality, especially in these areas of activity, which are complex by nature.
1 Yago Vázquez Moraga and Jordi López Batet are partners at Pintó Ruiz & Del Valle.