As you read this, the General Council of the Judiciary, the body that oversees the activities of Spain’s judges and courts, will be frantically searching for a way to limit the damage Judge Ricardo Rodríguez Fernández has caused after sentencing two journalists to 21 months in jail for publishing the names of 78 political party members on the internet.
Baffling would be the politest way to describe the judge’s decision, which has dismayed defenders of freedom of speech and dealt a blow to the credibility of Spain’s judicial system.
The story dates back to 2003, when Daniel Anido and Rodolfo Irago, respectively the director and news chief of the SER radio network, were following up a story about two Socialist Party members who had jumped ship to the centre-right Popular Party (PP) on the eve of municipal elections that May. As a result of the two turncoats’ actions, the Socialists narrowly lost to the incumbent head of the Madrid regional government, Esperanza Aguirre. And this after the two parties had agreed a pact prohibiting such activity following shenanigans in Melilla and Marbella a few years earlier.
In the course of their investigations into the affair, Anido and Irago discovered that the PP’s branch in the Madrid suburb of Villaviciosa de Odón – where a hotel had been used as a hideout by the two defectors after their dirty deed – had been up to all sorts of irregularities: among them the affiliation of 78 people without going through the correct procedures.
And among the names of the 78 were two businessmen who had played a key role in facilitating the defection of the two Socialists to the PP. One of them had booked the hotel room used by them, for example.
After the names of the 78 were published on SER’s website, the PP took legal action against Anido and Irago, charging them with violating privacy laws.
Quite how the case went to trial is a mystery. But Rodríguez Fernández, instead of throwing it out when it landed on his desk, decided that the whole affair hinged on the question of what can legitimately be published on the internet, effectively setting himself up as arbiter of what constitutes the media — whose right to inform is protected by the Constitution. He reached the conclusion that the internet is not a “social” media, as is television, radio and the press, but a “universal” media, which presumably equates with standing on a street corner shouting your head off, and thus is not protected by the Constitution.
In handing down the sentence, the first of its kind since General Franco passed away in 1975, the judge accepted that the journalists had acted in good faith, and that the information was newsworthy. But he added that the pair had gone beyond their remit in publishing the names of the political party members, and that as the internet, in his opinion, was not protected by the Constitutional right of information, they were going down.
So, just what was the news, your honour?
“The news was not whether certain people belonged to a party, revealing their names and details in the process, but simply the information that there were allegations of membership irregularities in Villaviciosa de Odón,” said the judge in his summary.
The journalists’ lawyers suggested that the key point here was that the two businessmen’s names were on the front page of every newspaper in the land, and that there was clearly a connection between them and the PP.
The sentence, passed just before Christmas, has triggered an outcry from journalists at home and abroad, with the International Press Institute and the Association of European Journalists joining the chorus of criticism.
“The Spanish justice system has a chance here to set the record straight,” said IPI director David Dadge. “The convictions against these two journalists must be overturned. This was an appalling decision for a European democracy. Journalists must be able, anywhere in the world, to report on matters in the public interest, without fear of criminal charges.”
Senior lawyers have also spoken out. Rafael de Mendizábel, a member of the Royal Academy of Jurisprudence and a former member of the Constitutional Court, has described the sentence as “strange and singular,” as well as “profoundly mistaken.”
Marc Carillo, a professor of Constitutional Law at the Pompeu Fabra University in Barcelona, said the judge’s ruling was “in the antipodes of Constitutional jurisprudence.”
Mendizabel said the jail sentence would be overturned by a higher court when Anido and Irago’s appeal was heard. “I see a bad end for this sentence,” he said, adding: “I would suggest that my colleague tries harder to digest his widespread knowledge.”
Indeed, one can only wonder why such an undoubtedly busy man as Judge Rodríguez took it upon himself to decide what constitutes “the media,” and how he was able to reach his conclusion without consulting anybody: if he had, they would have reminded him of the Monica Lewinsky affair more than a decade ago. The whole sorry business was sparked by a story on Matt Drudge’s website, which was picked up by the New York Times and published verbatim. If only Judge Rodríguez had been on hand then, Bill Clinton must be saying to himself.
Meanwhile, the Madrid provincial prosecutor has responded to the hullabaloo by appealing to have the journalists’ sentences reduced to a mere five months, which could be substituted with a €4,500 fine. They just don’t get it, do they?
Excellent article but how about a follow up? What happened? Are they still in prison? Did they win their appeal or are they still waiting? Is everyone still laughing at the judge?
This is indeed a story we intend to follow up on, especially as judicial cases of this kind can take many twists and turns.