Is it legal to record and broadcast police actions? This is what the current law allows and what it has been proposed to reform
If it weren’t for the recordings, police abuses like the happened in Linares they would not always come to light. Having graphic documents of these actions is important to be able to report the most serious cases, but the protection, security and privacy of the agents is also at stake. This is what Spanish law says about recording and broadcasting police actions, when is it legal to do so and what limitations are there.
The Organic Law 4/2015, of March 30, on the protection of citizen security, popularly known as ‘Gag Law’ It is the current standard that governs recordings. A law that has already served more than five years and the current government has promised to reform it. Here we will also review what the proposals for change have been and what proposals have been made regarding being able to record police officers.
Is it legal to record the Police and Civil Guard?
In Spain yes it is allowed take pictures of the policemen and their actions, but There are also penalties for unauthorized use, especially when the agents themselves are put at risk. How is this risk determined?
This is what article 36.23 says, qualified as a serious crime:
“The unauthorized use of images or personal or professional data of authorities or members of the Security Forces and Bodies that could endanger the personal or family safety of the agents, of the protected facilities or at risk the success of an operation, with respect to the fundamental right to information “.
That is, the law allows recording but does not authorize the use of images that represent a “risk to the agent’s personal or family safety“or the” success of an operation “, always subject to the fundamental right to information. Here it would therefore be admitted to record actions that could constitute abuse, but it would not be acceptable to record the agent so that he could be identified and publicly lynched.
In addition to the citizen security law, in this matter it is also necessary to remember the Organic Law 15/1999, of December 13, on Protection of Personal Data, which classifies as a serious crime “processing personal data without obtaining the consent of the affected persons”.
Videos like those of Linares have served to provisionally send two officers to prison. The associations in defense of civil rights recommend that you always record and photograph police actions, to defend yourself in the event of an accusation by the law enforcement officer or to have evidence in the event of abuse such as that which occurred in the municipality of Jaén. However, with the arrival of the ‘Gag Law’, the point described above was introduced, which generated some doubts and interpretations.
3️⃣ What happened shows the importance of videotaping certain police actions.
Before the era of mobiles, these incidents ended with an innocent victim convicted of an attack on a law enforcement officer.
– José María de Pablo (@chemadepablo) February 14, 2021
What details to take into account and how to act
Before this law, from the Platform in Defense of Freedom of Information (PDLI) published a manual with recommendations on some of the more troublesome issues, like taking pictures of police officers.
Regarding the point of taking images, the PDLI defends that “you have to dismantle a hoax. It is false that it is forbidden to take photos of police officers. As can be seen in the article, what is punishable is the unauthorized use of the images, and not obtaining them. This article must be interpreted together with article 8 of Law 1/1982, on civil protection of the right to honor, personal and family privacy and one’s own image “.
As explained Carlos Sanchez Almeida, lawyer and legal director of the PDLI: “the police You cannot ask a journalist, or even a citizen, to hand over your camera or mobile phone, much less delete the photos “, doing so would constitute a crime of revealing secrets and computer damage.
“The problem is what to do on the street, if a policeman gives an order in this regard, under the warning of being arrested in case of disobedience. The solution at that time cannot be given by a lawyer, but by the people who surround the person recording, who may act as witnesses of the violation of rights. Apart from this, it is highly recommended to have the immediate storage of the images in the cloud activated, in order to prevent the deletion of the exclusive, “says Almeida.
The Ombudsman himself published a text in 2016 recommending to the General Directorate of the Police that it be reported that the capture of images is allowed, in relation to two previous sentences that prohibited recording.
In 2018, the new government issued the Instruction 13/2018 which provided some nuances and clarified that “the mere filming or processing of data by the police officers is not per se constitutive of an offense if this does not entail a real risk situation, both for the agents, their family, facilities or police operations” . A rule that was appealed before the National Court and it was estimated that the subsequent irregular use of the data may be subject to sanction by rules other than the Citizen Security Law.
In summary, the law establishes that the simple taking of images does not constitute a crime and for there to be an infringement, these images or data must be used and that this also poses a risk to the security of the agents. A risk that must be described by the Police itself. The rule also provides that police officers can identify the citizen in case in the future it is misused.
A pending reform that continues to seek support
The government of Pedro Sánchez has tried to reform the ‘Gag Law’ on different occasions, but for the moment it is still valid. According to your agreement with United We Can, point 5.6 states that “a new law on citizen security will be approved to guarantee the exercise of the right to freedom of expression” that “will regulate, among others, the right to assembly, identification and body search, the identification of agents , and the repeal of article 315.3 of the Penal Code “.
Although the reform of the Citizen Security Law has not yet arrived, in 2018 an instruction was issued providing nuances on the taking of images of police officers.
Subsequent agreements with other parties have proposed to eliminate the serious unauthorized image infringement. According to the PNV, you have to eliminate it because “supposes a general and preventive prohibition of active and passive freedom of information with reservation of authorization not respecting, with it, the principles of proportionality and weighting that have been demanded by the same TC “.
The reform of the Citizen Security Law is one of the pending issues for this 2021. The PP defends that the current law be maintained, parties such as United We Can, Citizens or ERC are committed to the reform, while EFE sources point out that the Ministry of the Interior has no interest in reversing the law and only a few tweaks would be applied, adding instructions as the one already dictated on the taking of images of the agents.