Insight: an overview of media and entertainment law in Spain

All questions

Overview

Technological innovations in recent years have led to a significant change in the media and audiovisual market. It is obvious that the conjunction of high-speed internet, broadband cellular networks and the popularisation of smartphones has resulted in a significant change in consumers’ habits and in how audiovisual content is created and distributed. This change has given rise to the appearance of new players, stakeholders, types of content and channels in the market. This is particularly noticeable among the younger generations, who have replaced traditional audiovisual platforms and content with new audiovisual media services such as live streaming audiovisual platforms, user-generated content and video-sharing platforms, among others.

In this context, on 24 March 2021, the Spanish government presented its plan to boost the audiovisual sector, Spain: Audiovisual Hub of Europe, aimed at consolidating Spain as a leading audiovisual production centre, attracting foreign investment, facilitating the establishment of companies in the audiovisual sector and, ultimately, increasing the competitiveness of the Spanish digital market (e.g., by improving the current financial regulations and tax instruments). In particular, among the different measures launched to meet these goals, the plan proposes some regulatory reforms and the elimination of administrative barriers. In this regard, one of the first measures already adopted is the promulgation of Law No. 13/2022 of 7 July 2022 on general audiovisual communication, by means of which EU Directive 2018/1808 (the Audiovisual Media Service Directive) has been transposed in Spain, and our internal regulatory framework has been updated to meet the new needs and face the new challenges of the sector.

This new regulation is intended to (1) promote European audiovisual works; (2) foster linguistic diversity, promoting all the official languages of Spain; (3) promote equality and the representation and participation of women in the audiovisual sector; (4) reinforce the protection of minors (e.g., imposing on the video-sharing platforms the obligation to verify the age of the users); (5) regulate the activity of influencers, who will be considered as audiovisual communication services providers; (6) relax the limits imposed on advertising; and (7) reinforce the financing system of the Spanish national public channel, RTVE.

It is still too early to assess the impact that this plan and the new regulations will have on the Spanish audiovisual market, but, hopefully, we will be able to reap the benefits of this reform in the coming years.

Legal and regulatory framework

The Spanish legal system does not regulate media and entertainment in a single piece of legislation, which would probably help in terms of systematisation and efficiency. The industry is regulated by means of several sectoral sets of rules dealing with its different branches and activities. This regulatory framework is made up of a wide range of laws, royal decrees and regulations of more limited scope, all of which are governed by the Spanish Constitution and, in particular, by those provisions that refer to the exercise and guarantee of fundamental rights (information, honour and privacy, etc.) and other liberties (such as the freedom of entrepreneurship and the facilitation of proper use of leisure time by the public administration). This regulatory system is consistent with the international treaties entered into by Spain and with the relevant EU regulations.

In this context, the Constitution acknowledges, in Article 20, the fundamental rights of all citizens to freedom of expression; freedom of literary, artistic, scientific and technical creation; academic freedom; and freedom of the press. The exercise of these rights cannot be restricted by any type of prior censorship and may be generally limited only in very exceptional cases, such as in states of alarm, emergency and siege. Similarly, Section 5 of Article 20 stipulates that the seizure of publications, recordings and other means of information can be executed only subject to a judicial decision. However, the exercise of these rights must be coherent and respectful of other rights, such as the right to the protection of honour, privacy and one’s own image, and it must respect the protection of youth and children.

In addition to the Constitution, several statutes are of particular relevance in the media and entertainment sector, inter alia:

  • Royal Legislative Decree 1/1996 of 12 April 1996 approving the Intellectual Property Law (the IP Law);
  • Law No. 34/2002 of 11 July 2002 on services of the information society and electronic commerce, which transposed EU Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000;
  • Law No. 7/1998 of 13 April 1998 on general contracting conditions;
  • General Law No. 13/2022 of 7 July 2022 on audiovisual communication (the General Audiovisual Communication Law);
  • Law No. 9/2014 of 9 May 2014 on telecommunications;
  • Organic Law No. 3/2018 of 5 December 2018 on the protection of personal data and guarantee of digital rights, which consolidates and develops the provisions and principles of the EU General Data Protection Regulation;
  • Royal Legislative Decree 1/2007 of 16 November 2007 approving the consolidated text of the General Law for the Protection of Consumers and Users;
  • Law No. 3/1991 of 10 January 1991 on unfair competition (the Unfair Competition Law);
  • General Law No. 34/1988 of 11 November 1988 on advertising (the General Advertising Law);
  • Law No. 14/1966 of 18 March 1966 on press and printing;
  • Organic Law No. 1/1982 of 5 May 1982 on civil protection of the right to honour, personal and family intimacy, and one’s own image; and
  • Organic Law No. 2/1984 of 26 March 1984 on the right to rectification.