It is a well-known fact that under English laws, once legal proceedings become active, it is a criminal offence for media organizations to broadcast material which would create a substantial risk of serious prejudice to the proceedings. Statutory contempt law, also known as ‘sub iudice’ rules, come into force once a person is arrested, a warrant for arrest is issued, a summons has been issued, or a person has been charged, and they remain so until such time as the accused has been acquitted or convicted.
In Spain, such rules don’t exist in respect to the press save for when a Court specifically orders the proceedings to be ‘secret’ (secreto de sumario) but then, it is a general ban on any person or organization privy to such information. Outside of this exception, although parties to the case are supposed to treat data confidentially (fines of between €1,5 to €15 apply to lawyers breaching this), there is almost free rein for the press to publish details of pretty much any case ventilated through Spanish Courts, in the investigation phase (as the trial is officially public), even if there is a real danger of prejudging a case or its legal issues; no doubt the consequence of many decades of fierce censorship under Franco’s ruling.
Recently, the investigating Judge José Castro said the following in respect of the magnitude of the leaks on the ‘Urdangarin’ case (King Juan Carlos’ son in law): “A secret shared by so many people makes it practically impossible to keep with scrupulous confidentiality”. In his writ, the Magistrate explained that leaks could have come from lawyers, procurators, police forces, prosecutors or civil servants, among others, and argued that it would be a waste of public money to try to find the culprit, if this was at all possible. The press is not mentioned here, the reason being that they are expected -almost obliged- to publish any information deemed in the public interest and this is rarely questioned. In 2009, the State General Prosecutor concluded that ‘leaks are inevitable’.
In 2004, the Communications Department of the General Council of Judiciary issued a protocol in respect to the type of information that could be released by the Courts, when a case was in the investigation phase, but this has never gone beyond being a mere ‘recommendation’.
Finally, the Spanish Constitution Tribunal has, on many occasions, stressed the importance of freedom of communication and expression as a pillar of democracy citing, insofar as journalism is concerned, a paragraph of the famous European Court of Human Rights Goodwin vs. United Kingdom case:
“If journalists are forced to reveal their sources the role of the press as public watchdog could be seriously undermined because of the chilling effect that such disclosure would have on the free flow of information.”