Fundamental Rights and Guarantees under Article 20 of the Spanish Constitution
Freedom of Expression and Information under Article 20 CE
Article 20.1 CE protects several different fundamental rights. Along with the recognition of those rights, this article governs their guarantees (Arts. 20.2, 20.3, and 20.5 CE) and its limits (Art. 20.4 CE).
Fundamental Rights Recognized (Article 20.1 CE)
Article 20.1 CE recognizes and protects the following rights:
- To freely express and disseminate thoughts, ideas, and opinions through words, writing, or any other means of reproduction.
- Freedom in the production of literary, artistic, scientific, and technical works.
- Academic freedom.
- To communicate or receive freely truthful information by any media.
Defining Truthful Information (Article 20.1.d)
The purpose of the freedom of information section (Article 20.1.d) is defining what constitutes “truthful information,” meaning the description, predominantly non-judgmental, of factual events. Freedom of information has an active side (the right to “communicate”) and a passive side (the right to “receive”).
As the wording of Article 20.1.d states, the facts disseminated must be truthful to merit constitutional protection. This truth should not be construed as synonymous with absolute accuracy; it is required only that the information conforms to the truth in material respects.
Guarantees of Freedom of Expression
In addition to the characteristics common to all fundamental rights, freedom of expression is surrounded by a number of specific guarantees established in the Constitution:
Prohibition of Prior Censorship (Article 20.2 CE)
Article 20.2 CE establishes that “The exercise of these rights shall not be restricted by any form of prior censorship.” Organic Law 4/1981 (regulating the state of alert, emergency, and siege) provides that measures taken must be free of “any prior restraint.”
Judicial Seizure of Publications (Article 20.5 CE)
According to Article 20.5 CE, “The seizure of publications, recordings, and other media can only be ordered by a court.” This constitutional provision prevents authorities other than the court from prohibiting the dissemination of opinions or information.
Right of Correction (Rectification)
The Right of Correction is not expressly contemplated by the CE, but was introduced by the Organic Law (LO 2/1984, Law governing the Right of Rectification). This right allows individuals to require the publication of certain corrections regarding reports in a media outlet.
Pluralism in Public Media (Article 20.3 CE)
Article 20.3 CE guarantees pluralism within publicly owned media. This Article states that:
“The law shall regulate the organization and parliamentary control of the media dependent on the state or any public entity and ensure access to the media of the significant social and political groups, respecting the pluralism of society and the various languages of Spain.”
Clause of Conscience and Professional Secrecy
Article 20.1.d CE specifies that the law shall regulate the clause of conscience and professional secrecy in the exercise of these rights. The Clause of Conscience is defined as the faculty for the information professional to refuse jobs that conflict with their code of ethics. It serves as a guarantee of their professional independence against the employer.
Limits of Freedom of Expression (Article 20.4 CE)
According to Article 20.4 CE, “These freedoms are limited by respect for the rights recognized in this Part, by the provisions of laws developing them, and especially by the right to:”
- Honor
- Privacy
- Self-image
- Protection of youth and children