‘Ley Mordaza’ and the 2015 Criminal Code reform: key changes in the digital sphere

‘Ley Mordaza’ and the 2015 Criminal Code reform: key changes in the digital sphere

On 1 July 2015, Organic Law 4/2015 of 30 March on the protection of public security, better known as the “Ley Mordaza”, entered into force together with the reform of the Criminal Code, introducing highly relevant amendments in various areas, particularly with regard to the Internet.

Since its adoption, it has been the subject of intense controversy. Its stated purpose is to guarantee public security and maintain public order, but it has been criticised for entailing a limitation of fundamental rights, especially freedom of expression and the right to peaceful assembly.

Changes introduced by the Ley Mordaza

Among the most controversial novelties that emerged following the entry into force of this law, the following stand out in the field of the Internet:

• Prohibition of calling demonstrations through social networks. Any person who disseminates a demonstration via social networks or online forums may be held responsible. In the most serious cases, fines can reach up to €600,000.
• Prohibition of publishing images of police officers. The dissemination of images or personal data of police officers is classified as a serious offence, punishable with fines ranging from €601 to €30,000, when such dissemination ‘may endanger the personal or family security of the officers, the protected facilities, or the success of an operation’. This provision has sparked significant debate, as it introduces an indeterminate legal concept (“may endanger”), which may come into conflict with the right to information.

Although presented under the logic of ensuring security, these provisions have been interpreted by broad sectors of society as an instrument aimed at controlling and discouraging citizen protest.

Does the Ley Mordaza limit the right to freedom of expression?

Since its entry into force, one of the main criticisms has been that the Ley Mordaza restricts fundamental rights enshrined in the Spanish Constitution, in particular:

• Article 20 CE, which protects freedom of expression and the right to communicate truthful information.
• Article 21 CE, which recognises the right to peaceful assembly.

Various international organisations, such as the ONU, have recommended its review, warning of the risk that its application may foster self-censorship and restrict the work of journalists and activists.

Nevertheless, the Constitutional Court has upheld its constitutionality on several occasions, stressing that fundamental rights are not absolute and may be limited for reasons of public security, provided that such limitations are proportionate.

Main reforms to the Criminal Code

The Ley Mordaza was accompanied by the 2015 reform of the Criminal Code, strengthening the prosecution of unlawful conduct on the Internet. Among the most relevant changes:

• Crimes against intellectual property. Article 270 increased penalties to up to four years’ imprisonment (previously up to two) for certain offences, such as plagiarism or the unauthorised communication of works. In addition, Article 271 also raised penalties to up to six years (previously four) in aggravated cases.
• Unlawful access and hacking. Penalties of up to two years’ imprisonment were established for unauthorised access to systems, and up to three years for the manufacture or commercialisation of devices designed to circumvent security measures.
• Crimes against privacy. New forms of cyber-harassment and privacy violations were introduced, such as revenge porn or sextortion. The dissemination of images without consent was punished with sentences ranging from three months to one year, with aggravated penalties where the victim is a minor, a person with a disability, or where there is intent to profit.
• Child pornography and grooming. The criminal offence was broadened to also sanction the mere possession or acquisition of child pornography, as well as contacting minors under 15 years of age through digital means with the aim of obtaining sexual material or images.
• Terrorism and cybercrime. Certain computer offences were classified as terrorism, provided they are committed with the aim of destabilising institutions or coercing public authorities. In addition, prison sentences of 1 to 5 years were established for “habitual” access to websites with terrorist content, introducing the ambiguous term “habitual,” which must be interpreted by the courts.

The Ley Mordaza and the 2015 reform of the Criminal Code represented a tightening of Spain’s criminal and sanctioning framework, with many of its consequences extending into the digital sphere.

To this day, it remains one of the most controversial legislative texts, as critics warn that it opens the door to limiting freedom of expression, peaceful protest, and journalistic activity, making its review an ongoing social and political demand.