Is hating a crime? No, it’s not. In fact, if it were, a large part of the Spanish population —if not all— He would face justice. Now, why does the so-called hate crime exist then?
It is worth pointing out a very important preliminary nuance: the behavior punished by article 510 of the Penal Code corresponds to the so-called crime of hate speech.
It would be the equivalent of hate speech (translation of the English term hate speech), but the Penal Code does not even call it under any of those formulas.
It is framed in its First Section of Chapter IV, in the section called Of crimes committed on the occasion of the exercise of fundamental rights and public freedoms guaranteed by the Constitution. And it presents some very specific characteristics, which go beyond hating someone, which —we insist— it is not illegal.
What does the crime consist of?
The Penal Code explains the details of this conduct. Its article 510.1 a) contemplates punishments for “those who publicly encourage, promote or incite directly or indirectly hatred, hostility, discrimination or violence against a group, a part of it or against a specific person by reason of their membership in that group, for reasons racist, anti-Semitic, anti-gypsy or other related to ideology, religion or beliefs, family situation, the membership of its members to an ethnic group, race or nation, their national origin, their sex, sexual orientation or identity, for gender reasons, aporophobia , illness or disability”.
Therefore, the Penal Code does not punish mere hatred, but rather those conscious behaviors motivated by an evident discriminatory desire against a group or a part of it and that have sufficient capacity to incite hatred against said portion of the population. —the so-called target groups—as well as justify or praise such behaviors.
The Prosecutor’s Office, in a 2019 circularalso summarizes how this crime works: “The “The active subject must act with knowledge and will to commit the typical act (fraud), but is only criminally responsible if the conduct is carried out for a reason of hatred or discrimination against a certain group or any of its members (motivation).”
“In any case, the incitement must be public,” specifies the Public Ministry, which relates, as we insisted before, “that “The mere idea or hateful opinion is not pursued.” “What is sanctioned is the endangerment of the protected legal good through the externalization of that idea or opinion to third parties,” explains the State Attorney General’s Office. And what is this protected legal asset? Non-discrimination, as a right derived from the right to equality, and, ultimately, the human dignity.
“For an offense of hate to occur, it will also be necessary that the action (…) can only be understood from the contempt for the intrinsic dignity that every human being possesses by the mere fact of being one. It represents, in short, a attack on those who are different as an expression of intolerance incompatible with coexistence,” the circular states.
What are your sorrows?
It depends on the case. The basic type of crime, included in the aforementioned article 510.1 a) of the Penal Code, contemplates penalties of 1 to 4 years and fines ranging from 6 to 12 months.
However, there is also an attenuated type that deals with behaviors considered less serious. He faces prison sentences of 6 months to two years and a fine of 6 to 12 months.
These are the punishments for “those who harm the dignity of people through actions that entail humiliation, contempt or discredit of any of the groups referred to in the previous section, or of a part of them, or of any person determined for any reason.” of their belonging to them for racist, anti-Semitic, anti-gypsy or other reasons referring to ideology, religion or beliefs, family situation, the belonging of their members to an ethnic group, race or nation, their national origin, their sex, sexual orientation or identity , for reasons of gender, aporophobia, illness or disability, or produce, prepare, possess with the purpose of distributing, provide third parties with access, distribute, disseminate or sell writings or any other type of material or media that, due to their content, is suitable for harming the dignity of people because they represent serious humiliation, contempt or discredit of any of the aforementioned groups, of a part of them, or of any specific person due to their membership in them.
However, if these behaviors “promote or favor a climate of violence, hostility, hatred or discrimination against the aforementioned groups”, they would be punished with the same penalties as the basic type (1 to 4 years and fines ranging from 6 to 12 months).
There is also an aggravated type of crime. Penalties of 2 to 4 years in prison will be imposed “when the events were carried out through a means of social communication, through the Internet or through the use of information technologies, so that it became accessible.” to a large number of people”.
Furthermore, “when the facts, in view of their circumstances, are suitable for disturbing the public peace or creating a serious feeling of insecurity or fear among the members of the group, the penalty will be imposed in its upper half, which may be increased up to superior in degree.” That is, they could reach a maximum of 5 and a half years in prison.
In all cases, a penalty of disqualification from teaching or free-time activities will be imposed, “for a period greater between three and ten years” than the duration of the prison sentence.
What about social networks?
The debate intensifies. Due to the crime in Mocejón (Toledo), in which little Mateo, only 11 years old, was fatally stabbed, the debate on hate speech on social networks and anonymity on platforms such as Twitter has been revived.
The Civil Guard, a few hours after the event, arrested a 20-year-old young man as the alleged perpetrator of the crime. He was a local resident with a possible psychological disorder. However, moments after the crime, certain Internet users blamed what happened on the menasthe name given to migrant minors who arrive in Spain unaccompanied by an adult.
As EL ESPAÑOL published, the Prosecutor’s Office is already reviewing these messages to see if they constitute a crime. This Monday, in an interview on Cadena SER, the prosecutor of the Hate Crimes Unit, Miguel Ángel Aguilar, proposed reforming the Penal Code so that those convicted of having committed actions of this type of serious nature on social networks They have to stay away from them for a while, and all their users have to be identified.
“Many times we encounter the difficulty that the investigation cannot prosper because we do not identify the author,” Aguilar said in his interview, before considering the mandatory identification of network users “a good idea.”
Are there dangers?
There are supporters and detractors. There are reputable voices both for and against restricting anonymity on social networks. It is evident that moving towards greater identification of Internet users facilitates the prosecution of crimes committed on the Internet.
However, it would also harm journalists or activists who use anonymity to their advantage, as a means of escape from censorship or the control of authoritarian governments.
Likewise, it should be regulated how to protect the data that users transfer to the large platforms that host social networks and what would be the optimal way to carry out this identification.
How could it be regulated then?
Mainly, through the EU. The European Parliament would be in charge of developing common legislation that concerns all member states. However, the latest regulation in this regard, the Digital Services Regulation, does not address the issue of identifying social network users.
On the other hand, the Popular Party already presented a bill in 2021 to require social media service providers to “identify each of the profiles and their user accounts, through their ID, passport or any other document.” official identity accreditation”.
The reform of the PP [consúltela aquí en PDF] He considered failure to comply with this obligation as a “very serious infraction.” And it proposed punishing it with fines, from 150,001 to 600,000 euros, for digital platforms, which could temporarily lose permission to operate in Spain in the event of repetition.
For his part, prosecutor Aguilar proposes that the Spanish Penal Code include a type of penalty that it does not include until now: preventing, for a certain time, those convicted of serious crimes from being able to use the social networks where their illicit behavior occurred again. .
Now, there is another difficulty in addressing this problem at the European level: the majority of networks are foreign-owned. TikTok is Chinese and Twitter and Facebook are American. These countries have more lax regulation on these platforms.
What do the parties think?
After the interview with prosecutor Aguilar on Cadena SER, the deputy spokesperson of the PP in the Senate, Antonio Silván, showed himself supporter of ending user anonymity on social networks. According to him, in this way it would be more feasible to put a stop to hate campaigns on the internet.
“We cannot hide behind anonymity to say what we do not say with names and surnames,” Silván stressed. “It cannot be used to make statements that we would not make with names and surnames,” he said.
For their part, PSOE sources told EL ESPAÑOL that “a judge has to be able to know who is behind an alias.” “If there is a request for the identity of that account by a court, it must be attended to immediately,” they added.
Pursue this crime on networks.
It is an arduous, complicated task. This is what he recognizes the circular of the State Attorney General’s Office on this crime, dated 2019. If it is already difficult “valuing the concurrence of a feeling as intimate as the intention that guides the active subject of a criminal act”, is even more so in cases like these.
The document also includes some particularities regarding the persecution of hate speech on social networks. “HIt will be necessary to assess, first of all, that the writing itself [en redes sociales] “It allows a certain reflection on what is written, so the allegation of a spontaneous or uncontrollable reaction is not acceptable uncritically,” he compares.
A ruling from the Supreme Court, from 2018, addresses the fraud in these behaviors. And he concludes, in the same sense, that comments on social networks, like texts written in a newspaper, allow re-reading and are not comparable to reactions to “an uncontrolled situation (…), momentary, even emotional, in the face of a circumstance that the subject has not been able to control.”
In its circular, the Prosecutor’s Office includes as another factor that must be taken into account “the reiteration [o no] of the conduct”, if it occurred “on the same or on different dates”. “And, finally, that they are objectively humiliating, aggressive or hurtful expressions, which do not admit a possible rational interpretation other than a mere expression of hatred or discrimination,” he adds.
In addition to assessing “the context in which the action occurs”, the Prosecutor’s Office, when prosecuting these crimes, also on social networks, takes into account, to determine “the existence or not of a motive of hatred or discrimination” , criminal or police records for similar conduct, the analysis of the chats and videos disseminated by an investigated person or their integration into radical groups, such as neo-Nazis or Latin gangs.
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