Authors:
José María Herranz de la Casa, Susana de la Sierra, Juan Luis Manfredi Sánchez (University of Castilla-La Mancha)
Luis Palacio Llanos (Digimedios)
October 2015

1. Introduction

Spain’s population of over 46 million represents a large media market. Media content is produced in Spanish for both the national and the Latin American audiences. Television represents the most important news source. According to the Eurobarometer (EB823, Autumn 2014), 64% of the Spanish population uses television as their first source of news, while only 11% of the population relies on the Internet, and 8% on the printed press.

The 1978 Constitution divides Spanish territory into autonomous communities that are granted broad, yet limited, political and legal autonomy. Local and regional governments have normative competencies with which to establish, organise and develop audiovisual services in their own territories.

There are three minority languages: circa 17% of the population speak Catalan, 7% Galician and 2% Basque. The most relevant ethnic minority are the Roma, who represent 1% of the population. Roma generally hold Spanish nationality and they are not officially recognised as being a specific minority.

The political situation is stable: new political parties share the political arena with the classic conservative and socialist parties[1]. After years of crisis, the economy is growing again, contributing to the growth and development of media services, especially in the digital market. However, having accumulated large debts during the financial crisis, the media industry in Spain is still encountering difficulties. The print industry is diminishing, and massive layoffs of journalists have prompted concerns about whether some of Spain’s most read newspapers have lost their editorial independence. Moreover, in 2015, the Conservative government passed the so-called ‘gag law’, which imposes high penalties for unauthorised political protests, or for the publication of amateur video footage of police officers. The government has also increased its control over Spain’s public television and radio broadcaster (RTVE); and in 2012 a law was introduced that allows the government to appoint RTVE’s head, without the consent of other political parties. The general condition of media pluralism is reasonable in three domains, but the MPM analysis shows a high risk in the Market Plurality domain (69%), due to growing concerns that are associated with media concentration. Risks to media pluralism in Spain are low in the ‘Basic Protection’ domain (25%). The ‘Political independence’ and ‘Social Inclusiveness’ domains indicate a medium risk (34%).

 

2. Results from the data collection: assessment of the risks to media pluralism

The results were collected from April to October 2015. The MPM shows the following figures: low risk in about half of the indicators (nine), medium risk in eight of them, and high risk in the remaining two. The highest risk is found in ‘Market Plurality’.

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risks-es

 

2.1 Basic Protection (25% risk – low risk)

The Basic Protection indicators represent the regulatory backbone of the media sector in every contemporary democracy and they measure a number of potential areas of risk, including the existence and effectiveness of implementation of regulatory safeguards for freedom of expression and the right to information; the status of journalists in each country, including their protection and ability to work; as well as the independence and effectiveness of national regulatory bodies, namely media authorities, competition authorities and communications authorities.

 

Indicator Risk
Protection of freedom of expression 33% risk (low)
Protection of right to information Negligible
Journalistic profession, standards and protection 50% risk (medium)
Independence of national authority(ies) 18% risk (low)

 

Spain has a well-developed legal and regulatory system with which to protect and promote the freedom of expression. The freedom of expression and information is a fundamental right in Spain, and it is enshrined in the Spanish Constitution (1978). In  regard to international fundamental rights, treaties that lay down the signatory states’ duty to safeguard freedom of expression, Spain signed the ICCPR in 1976 and ratified it in 1977, with no exemptions. The ECHR was signed in 1977 and was ratified in 1979.

Spain has not decriminalised defamation, which is prosecuted according to the Criminal Code. Courts are expected to rule on cases of defamation, in line with the principle of proportionality that was established by the case law of the European Court of Human Rights..

The Citizen’s Security Act (also known as the “gag law” because of its potential effect on the exercise of freedom of expression and other fundamental rights and freedoms) has recently been introduced. This law represents one of the main concerns relating to journalistic freedom, and it allows for the imposition of fines of up to €600,000 for a variety of “public order” offences, including unlicensed demonstrations outside a parliament building, inciting an unauthorised protest online, and disrespecting the Police. The provisions regulating the aforementioned types of conduct are, however, drafted in vague terms, thereby leaving room for interpretation. Combined with the sanctions that the law imposes, this vague wording may produce a chilling effect on freedom of expression. For example, it may discourage citizens from expressing their views on matters of common concern and could limit the press coverage of demonstrations by professional journalists. Photojournalism is also under threat because the dissemination of footage, or of any type of images, of security officers (the police) may be considered a “serious offence”. The second area of risk derives from the Criminal Procedure Act, which prescribes that photos of demonstrations, the police and public officials cannot be taken, and that other images of criminal defendants are restricted.

The risk increases from low to medium in the digital arena. Several problems have been identified here. For example, the “right to be forgotten” seems to be exercised in an arbitrary manner, and the requests to be de-listed from search engines are very often used to censor past political activity. This adversely affects the rights of citizens to receive and have an impact on information, and it prevents journalists from accessing additional sources of information in order to report news in an accurate manner. Moreover, restrictions on freedom of expression online, most notably the blocking of websites, are based on administrative rather than judicial proceedings, thereby raising concerns about the independence (or the lack thereof) of the bodies that are in charge of limiting access to information that is distributed through the Internet.

The introduction of the aforementioned measures represents a clear step backwards in relation to the protection of freedom of expression. However, it is still too early to evaluate the impact of these measures properly. This goes partway towards explaining why the overall score for this indicator amounts to 33%, thereby indicating a low risk

The right to information has two facets in the Spanish Constitution: Article 20 recognises and protects the right to communicate and to receive truthful information by any means. Article 105 provides that a citizen will be provided with access to administrative files and records, subject to specific conditions.

Moreover, based on the Constitution, the Spanish legislator has enacted the Organic Statute on the Civil Protection of the Right to Honour, Personal and Family Privacy, and Personal Image.

The score indicates a negligible risk and that there is a level of protection that is sufficient in terms of how the relevant institutional system has both been designed and functions.

The indicator “Journalistic profession, standards, and protection” highlights the inefficiency of professional associations and trade unions. Both denounce pressures at the editorial level, but they lack powerful enforcement mechanisms on the basis of which they can ensure journalistic independence. Moreover, the weakness of these professional bodies makes it difficult to obtain evidence of commercial influence over content. Physical attacks on journalists, or threats to their safety have not been reported. This remark is valid in both the off- and online environments. Finally, it is worth noting that neither the Constitution nor specific laws explicitly refer to the protection of journalistic sources. The indicator scores 50%, a medium risk.

The indicator “Independence of national authorities” scores low risk [1]. In 2013, a new regulator was created as a result of the merging of the previously existing regulators in the fields of telecommunications, energy and competition: the National Commission of Markets and Competition (Comisión Nacional de los Mercados y de la Competencia, CNMC). The laws regulating the media-related authorities respect European standards, and they thereby indicate a low level of risk. However, that the laws have been drafted in line with European standards does not necessarily mean their effective implementation. Ineffective implementation may be inferred from the fact that the CNMC has occasionally required media and telecoms companies to pay fines that, however, do not seem to have produced a deterrent effect, or to have improved the behaviour of these companies.

On the organisational side, the risk appears to be increasing through the merger of the media regulator with the competition authority. This was acknowledged by the Spanish Supreme Court which, in July 2015, asked the Court of Justice of the European Union for a preliminary ruling as to whether the CNMC is compatible with the European standards for regulators. Firstly, the CNMC is a “super-regulator”, in that it brings together different areas of interest and economic sectors. As a result, there is no body that deals only with media-related issues, something which has a particular connection to fundamental rights. According to the Statute regulating the CNMC, audiovisual services fall under the same umbrella as competition. The fact that media regulation and general market competition are merged together may be detrimental to the development of clear and specific policies in relation to freedom of expression and media pluralism. The regulator does not make any distinction between media and competition, thereby not attaching importance to the particularities of the media markets. This latter issue was also raised by the Supreme Court which, in its reference to a preliminary ruling, asked the Court of Justice of the European Union whether the inexistence of an independent audiovisual authority, realised by the new law on CNMC, and its replacement by a new authority can be seen to be detrimental to the independent governance of the media sector.

Members of the governing bodies of the CNMC are appointed in a legal and transparent manner. However, our qualitative analysis led to the conclusion that such appointments are not necessarily driven by professional competencies. Rather, they seem to replicate the Parliamentary seats’ structure.

basic-es

2.2 Market Plurality (69% risk – high risk)

The Market Plurality indicators examine the existence and effectiveness of implementation of transparency and disclosure provisions with regard to media ownership. In addition, they assess regulatory safeguards against high concentration of media ownership and control in the different media, within a media market as well as cross-ownership concentration within the media sector.

 

Indicator Risk
Transparency of media ownership 50% risk (medium)
Concentration of media ownership 58% risk (medium)
Concentration of cross-media ownership 100% risk (high)

 

In regard to the “Transparency of media ownership”, Spanish law seems to be in line with the European standards. After notifying the initiation of activity through a general authorisation or license, audiovisual media companies are included in a specific Registry. The information that must be included in the Registry concerns their ownership structure. Any modifications in the structure in question must be notified within one month. However, no specific registry exists for print or digital media. In addition, problems exist in relation to the implementation of the rules on the transparency of media ownership, since the registration does not hint at any type of relationships among the different actors in the media, telecoms, or other markets. The public therefore receives a distorted view of the participants in the value chain. For this reason, the risk for this indicator has been evaluated as being at the medium level.

Concentration of media ownership” indicator also scores medium risk. The law establishes that no company is allowed to own shares in more than one TV outlet if, as a result, the accumulated audience of two or more companies is over 27% of the national audience. According to the digital technical plan, a single operator is not allowed to control more than two multiplexes: one multiplex at the regional level; or more than three private channels. This approach seeks to protect pluralism in the media market and, more precisely, the audiovisual media market. The medium-high level of the concentration of the audiovisual market, and of the audience shares, raises the general score of the risk.

As explained below, there are no cross-media ownership rules and therefore general competition rules apply. The Competition Authority (which is a division of CNMC) finds itself in the privileged position of formulating the Spanish media policy, as it has already decided upon issues concerning television mergers, radio mergers, and even mergers within the printed sector. These decisions also affect telecoms companies. It appears that applicable rules have not been strictly enforced; this remark is also valid for remedies that were imposed on firms that fell under CNMC’s scrutiny. Moreover, it is worth noting that, in terms of enforcement priorities, during the past two years, the CNMC has opened 26 cases, which primarily concerned advertising management rather than media concentration. At the regional level, courts may control the decisions that are adopted by the regional audiovisual authorities. The most active of these authorities is the Catalan Audiovisual Authority, whose decisions have, in some cases, been controversial. For instance, it approved the merger of two major television broadcasters on the basis of the Ley General de la Comunicación Audiovisual (Audiovisual Law). This transaction was criticised because it reduces competition in the audiovisual media market.

Cross-media ownership is the element that causes great concern, for the purposes of the MPM, since no cross-media ownership rules exist in Spain. The only point to consider here is that public authorities (agencies, courts) may take cross-media ownership into consideration when assessing the potential harm to the media market of a merger operation. The economic variable within the MPM indicator shows that there is significant media concentration across media; 58% of the media market is currently controlled by only three companies. The overall indicator points to the highest level of risk in the 2015 MPM.

market-es

2.3 Political Independence (34% risk – medium risk)

The Political Independence indicators assess the existence and effectiveness of implementation of regulatory safeguards against biased representation of political viewpoints in the media, and also the extent of politicisation over media outlets, media distribution networks and news agencies. Moreover, it examines influence of the state on the functioning of the media market, with a focus on state advertisement and public service media.

Indicator Risk
Political bias in the media 29% risk (low)
Politicisation of control over media outlets 31% risk (low)
Politicisation of control over media distribution networks 17% risk (low)
State advertising 39% risk (medium)
Independence of PSM governance and funding 50% risk (medium)
Independence of news agencies 38% risk (medium)

 

The “Political bias in the media” considers four factors: (1) bias in PSM reporting; (2) bias in commercial media; (3) bias in electoral reporting; and (4) political advertising. The main problem that is related to this indicator concerns the enforcement of the applicable laws. More particularly, the PSM mechanisms do not appear to be implemented effectively; for example, the Managing Board acts without attaching significant weight to the recommendations made by trade unions, journalists’ associations or consumers’ lobbies. Appeal mechanisms do not seem to be particularly successful. Moreover, journalists find the system of airtime distribution arbitrary, because it is based on the number of parliamentary seats. The political coverage on the private channels is not always fair, balanced and impartial, but, due to extensive political parallelism, most of the political viewpoints reach the citizens. The low risk may increase if the lack of efficient control mechanisms persists.

Politicisation of control over media outlets” scores low risk. Media providers that are affiliated to political parties are not common in the Spanish media system. Those that do exist do not seem to play a major role in influencing public opinion. However, with regard to the transparency of media control, it is worth noting that some companies do not comply with the required disclosure provisions, and, even when they do comply, the ownership structure is presented in a way which is too complicated for the public to understand.

The “Politicisation of control over media distribution networks” scores a low risk too. Distribution is based on economic rationales and there is no evidence of any cases of censorship.

Despite an existing legal framework, state advertising represents one of the main concerns in relation to media pluralism in Spain. A commission distributes funding according to particular criteria, but these criteria are not clear, and they do not consider the audience share, as has been suggested by independent media. Media companies call for a clearer set of indicators in regard to campaigns, including the advertising budget and other sources of state funding. In relation to digital media, digital media companies consider that the traditional media receive favourable treatment. At the local level, the lack of clear information relating to advertising poses risks to the development of local news media. This must be combined with the consideration that, at the local and regional levels, close relationships between the media and the political parties appear to exist.

Independence of PSM governance and funding” scores medium risk. The main problems in this domain concern the organisation of PSM. Recent legal changes have eliminated the consensus required to appoint the managers or board members of the PSM. There are control mechanisms in place (the Parliamentary Control Commission and the Council of News), but they are considered to be ineffective. The media law prescribes procedures that seem to be transparent and objective in determining the amount of money to be granted to the PSM. Direct grant to fulfill PSM mission and budgetary assignments are opaque to the extent that the criteria and evaluation (value for money) are vague. The definition of the public service mission lacks an informed debate.

Independence of news agencies” also scores medium risk. In Spain, there are three important news agencies. Agencia Efe is a public news agency that is state funded, while Europa Press and Servimedia belong to different business groups. There are also some regional news agencies: ICAL (Castilla-León), Vasco Press (País Vasco) and Axencia Galega de Noticias (Galicia). This indicator has been classified as being a medium risk due to the lack of data concerning the independence of news agencies. Despite market concentration, the independence of news agencies is not an issue that is on the political agenda.

political-es2.4 Social Inclusiveness (34% risk – medium risk)

The Social Inclusiveness indicators are concerned with access to and availability of media for different, and particularly vulnerable, groups of population. They assess regulatory and policy safeguards for access to media by various cultural and social groups, by local communities and by people with disabilities. Moreover, they assess the centralisation of the media system, and the quality of the country’s media literacy policy, as well as the digital media skills of the population.

Indicator Risk
Access to media for different social and cultural groups, and local communities 35% risk (medium)
Availability of media platforms for community media 75% risk (high)
Access to media for the physically challenged people Negligible
Centralisation of the media system 25% risk (low)
Universal coverage of the PSM and the Internet 19% risk (low)
Media literacy 50% risk (medium)

 

Access to media by different social and cultural groups” is provided with the rules governing public service media (Audiovisual Law, Article 3.2.j) in order to support the social integration. This means that public service media organisations are obliged to produce and broadcast content for minorities, or content that is created by minorities. A similar statement appears in the Catalan Media Law. More particularly, the law establishes certain criteria to encourage an increase in diversity, such as emphasising the parliamentary representation and representation of other social and cultural organisations (e.g., unions and universities). Since 2009, airtime access has been co-regulated through a compendium of basic guidelines. However, there is no data available regarding the effectiveness of co-regulation. It it is worth noting that, in 2007, the board of RTVE created an Ombudsman, the “Defensor de RTVE”, who is entrusted with protecting audiences, including minorities, by communicating with them directly. However, the Defensor de RTVE lacks the power to influence programming, distribution or content.

Availability of media platforms for community media” scores high risk. The biggest problem in the ‘Social Inclusiveness’ domain is reflected in this indicator, since there are no media platforms for community media. Under Law 7/2010, on Audiovisual Communication, Article 32, non-profit audiovisual services are to be regarded as community media. The digital switchover has contributed to the decline of community media in Spain. The current technical plan grants no space to community television stations. The MPM analysis indicates that the community media have limited access to traditional media channels, although reliable data are lacking. Most of the community media organisations have decided to move to platforms such as YouTube, or similar, in order to avoid obtaining any type of license. In the case of radio, we can find some exceptions connected to new social movements in Spain (“Indignados” and “15M groups”). However, the community radio stations that are managed by these movements have limited audiences.

The indicator “Access to media for the physically challenged people” scores negligible risk. The law (Article 8, Audiovisual Law) and quality standards (AENOR, UNE 153010) that regulate access to the media for physically challenged people, and the criteria for subtitling content, are clear.

Centralisation of the media system” is at low risk. Local and regional governments can create, organise and develop audiovisual services in their respective territories. The two axes are: identity (language) and proximity. The Audiovisual Communication Law (Article 40) supports decentralisation. The local and regional media cover about 99% of the population. Moreover, in territories with language diversity (Catalonia, Galicia, and the Basque region), regional legislation preserves and promotes the local media. The subsidies are organised in different ways: institutional advertising; subsidies for the use of local language; direct subsidies to the press; Public Service Broadcasting: radio, television, and new media in the respective regional language.

Overall low risk is also scored for the “Universal coverage of the PSM and the Internet”. The Audiovisual Law (Article 2.3) establishes that the “services of radio and television broadcasting will aim to achieve universal coverage, defined as the highest levels of coverage in the country.” Internet coverage is not universal. Rural broadband coverage is 98%, while overall broadband penetration is 65%.

Spain has an under-developed media literacy policy. Existing policies are at their nascent stages, and measures that have been taken in recent years are fragmented. There is no specific plan on media education, and there is no specific agency or department that is responsible for media education in Spain. The National Institute of Educational Technology and Teacher Education is the only national institution that is developing courses to introduce technology and literacy into the curricula. On the other hand, the National Digital Agenda Plan refers to media literacy within the digital plan, and the General Law on Audiovisual Communication includes media literacy amongst its objectives.

inclusiveness-es3. Conclusions

Based on the findings of the MPM2015, the following issues have been identified by the country team as more pressing or deserving particular attention by policy-makers in order to promote media pluralism and media freedom in the country.

The analysis of the situation in regard to media pluralism in Spain suggests that there are areas for improvement.

Legal reforms are necessary. Clear and effective rules should be enacted to improve transparency, particularly in the area of cross-media ownership. The public service media remit should be better defined and an effective supervisory mechanism checking compliance with this remit should be established. Severe concerns about the freedom of expression have been raised ever since the Parliament approved ‘the gag law’ – which imposes high penalties for unauthorised political protests, or for the publishing of amateur video footage of police officers – in addition to increasing governmental control over Spain’s public television and radio broadcaster (RTVE).

Professional associations lack the power to enforce their decisions when deontological codes are violated. Hence, a dialogue with these associations in relation to the potential establishment of a co-regulatory mechanism, similar to that underpinning the functioning of the Bar Associations, should be initiated.

Reflection is required on the need for an independent media authority with a specific mandate. The Spanish Supreme Court has asked for a preliminary ruling from the Court of Justice of the European Union on this matter and, in principle, it seems advisable to follow the patterns that exist in other Member States, which have established bodies that are entrusted with a mission to oversee the media sector only. In order to foster independence, the appointment system of the governing body of this authority should also be designed in such a way that it ensures that the rules are properly implemented. The body should have the power to impose sanctions to ensure greater transparency and plurality in the media. In regard to the objective of ensuring diversity, it is necessary to protect net neutrality. Otherwise, inequalities will be reproduced in the digital environment. Firstly, digital markets should be liberalised in order to increase competition and reduce the costs of the bandwidth (which is currently the highest in Europe). Secondly, the state should guarantee universal access to new digital services in every household/ Moreover, in order to co-ordinate all new media and emerging media technologies, we recommend the creation of a Chief Technology Officer, who would be concerned with long-term perspectives, major trends and innovation. In general, media literacy that is linked to digital literacy should be an important part of the political and legislative agenda, arguably with a body that is in charge of promoting these policies.

Furthermore, many media companies depend on institutional advertising and other subsidies. Spain needs a clearer system with which to evaluate public advertising, because it is a risky practice. Moreover, a national/industrial rationale is needed in the audiovisual sector. Over recent years, digital transition has been based only on the number of channels, but not on the quality of such media projects. This point is particularly relevant in the case of public service licenses. Moreover, it is necessary to promote digital media companies through a VAT reduction.

The depoliticisation of appointment procedures in the PSM, and the separation of functions (political control of budgets and remits vs. professional execution) is needed.

The public service media are still necessary in order to promote plurality and to endorse diversity. However, they need to adapt to new competitive environments and to repurpose their mission so as to achieve social objectives, including investigative journalism, in democratic societies.

Politicians have exercised a significant influence over the representation and management of public service media. In order to guarantee pluralism, and policymakers need to increase social representation. More particularly, it is important to include professionals, journalists, universities, content producers, and other stakeholders in the decision-making process. Here, the relationships between journalistic associations and universities may be opportunities to diversify institutional participation and to strengthen ties.

 

Annex I. List of consulted national experts

Mikel Lejarza – Antena 3 Media

Julio Alonso – Weblogssl.com

Emilio Guichot – Universidad de Sevilla

Elsa González – FAPE – Federación de Asociaciones de la Prensa de España

Elisenda Malaret – Universidad de Barcelona

Carles Llorens – Universidad Autónoma de Barcelona

Alejandra Iturriaga – CNMC

 

[1] The 2015 elections will affect that stability insofar as it is the first time in the Spanish democracy that there are four political parties which are relevant in the Parliament. Any change in media regulation will need negotiation and at least three (of the four) top parties’ agreements.

[2] NB: It needs to be noted that this indicator has been found to be problematic in the 2015 implementation of the Media Pluralism Monitor. The indicator aimed to combine the risks to the independence and effectiveness of media authorities, competition authorities and communication authorities, but it was found to produce unreliable findings. In particular, despite significant problems with regard to the independence and effectiveness of some of the authorities in many of the countries, the indicator failed to pick up on such risks and tended to produce an overall low level of risk for all countries. This indicator will be revised in future versions of the MPM (note by CMPF).

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