The APC European Internet Rights Project
Country Report Spain
By Chris Nicol
Telephone access in Spain has historically been dominated by the government monopoly, Telefónica, now a private company with government participation. Since 1995, the market has been gradually opened up to several private telephone companies, but the basic infrastructure, especially the local phone lines to each subscriber, are still operated by Telefónica, which rents these to the other companies and uses this, and its political influence, to continue to dominate Internet access in Spain. Only in 2000 were local calls opened up to other operators, in the midst of great controversy over the advantages given to Telefónica. At present, there are about 10 national operators, plus some niche companies.
This monopoly of Telefónica has allowed it to dominate the Internet access scene also. One of the few good ideas which this company has had was the establishment of a nation-wide Internet dialup service, Infovía, which allows users to connect to Internet for a local call from any point in Spain, and which ISPs can contract for their own users. Other companies, such as British Telecom, Jazztel, Retevisión, etc, have followed its example, with the result that access to Internet, in a country where telephones are widespread and in almost every home, is always available at the cost of a local call. Unfortunately, this cost is extremely high and, unlike other countries like the USA or Australia, is charged by the minute. This means that connecting for several hours a day is prohibitively expensive for most members of the general public, and has led to campaigns for a flat rate charge for Internet dialup. Grassroots cybernaut organisations such as the Asociación de Internautas have organised several one-day access strikes, where the number of persons using Infovía, for example, has fallen dramatically, as well as press campaigns, protests, etc, to force Telefónica to introduce a more accessible flat rate charge1. Finally, the Government was obliged to respond and legislate, but even so the flat rate is still very expensive, and is considered one of the primary reasons for the slow introduction of Internet in Spain.
The figures for Internet use in Spain vary according to the methodology used, but it is clear that the proportion of the general public which uses Internet (some 15% of homes) is lower than all countries of the European Union except Portugal and Greece, although this is increasing rapidly (an increase of 94% in 2000).2 In a population of 38 million, about 5 million are habitual users.
Cable television barely exists in Spain, and although several companies are investing heavily in infrastructure, the number of users who access Internet via cable is still low. In some regions, local governments have signed agreements to use cable to provide broadband access to the public, via local government services, including to rural areas, and thus encourage faster investment. ADSL, the only Internet access available at an affordable flat rate, is growing rapidly, increasing tenfold in 2000 to about 50.000 users. Cell phones are extremely widespread, and the government granted 4 licences for UMTS phones in 2000, with the successful bidders supposedly obliged to begin offering this new technology in 2001.
Although Spain has had a large number of ISPs (some 1,000), distributed throughout the country and most quite small, the small ISPs have found it increasingly difficult to continue for two main reasons. The first was the introduction of Infovía, which, while it meant the smaller ISPs could offer Internet to the whole of Spain, allowed the larger ones to dominate with national publicity and economies of scale. But what really destroyed about half of these smaller ISPs was the huge offer of free email and web space by the large ICT companies. Free accounts began with a few banks and professional colleges, but the telephone companies can afford to offer free accounts in a big way, banking on assuring clients and increasing telephone use. Now all the larger ISPs are owned by the large ICT companies, whether telephone companies or other mass media corporations such as El País, the main national newspaper, and are associated with large portals in competition. ISPs are grouped in the ASIMILEC3 lobby, and must register with the Telecommunications Market Commission (CMT)4, a government body which regulates telecommunications. There is very little government interference in ISPs, but the strong links between the Government and Telefónica have lead to accusations of favouritism and government sluggishness in enforcing its own regulations as regards Telefónica.
Until recently, Spanish domain names were controlled by RedIris, an Education Ministry body, which received many criticisms for its strict rules and bureaucracy in allocating domains, and meant that many turned to .com, .org or .net domains as an alternative. RedIris has also refused to create new Spanish news groups, traditionally its responsibility, arguing that it should not have to do this. A new organisation5 has been created to administer domain names, which has already received its share of criticism, principally because of high prices and strict restrictions on domain name allocation.
The Spanish Constitution6 (Article 20.1 and 20.2) protects the right to freedom of expression, while the General Telecommunications Act regulates telecommunications in Spain. There are many acts and decrees which provide further rights and obligations, tariffs, etc7, mostly concerned with deregulation, but only a minority of them refer directly to Internet, and even fewer to the protection of the rights of Internet users. Examples are a proposal for a law on electronic commerce (16/3/00) and another which provides guidelines for electronic signatures (17/9/99).
The Press Law (14/1966) includes a controversial article (65.2) which has been challenged several times in the Constitutional Court, and which suggests that authors, editors and publishers are responsible for the content they publish, which could have serious consequences for ISPs, but as yet there has been no case to test this8.
The most significant government initiative around Internet Rights has been the Senate Internet Commission. Several organisation created to represent the interests of Internet users submitted documents and/or appeared in the enquiry9, and the results were a series principles and proposals10, partially expressed as Rights of the Internet User, that have yet to be converted into law For example, the Senate Commission's conclusions state that freedom of access, circulation, information, and communication in the Net must be complete. The Socialist Party (PSOE), in the opposition, has tabled a proposal for a Bill of Rights11 that includes various kinds of rights to access Internet, the rights to privacy and confidentiality, etc, although the main focus is more on guaranteeing the quality of the service offered. The Senate Enquiry, the submissions to it, and the PSOE's proposal, are very much responses to the campaigns of the Internet users, and the organisations which represent them, against Telefónica, in favour of an affordable flat rate, etc.
The Data Protection Agency (APD)12 is a body set up by the Government, supposedly independent, whose main aim is to ensure the abidance of the legislation on the protection of personal data, especially in relation to the right to information, access, opposition, rectification and cancellation of data. Apart from protecting consumers' privacy rights, in particular the use and sale of data bases, including those of Internet users, it has also been accused of censorship. Such is the case of the Association Against Torture13, which published on the Internet a list of those police officers and prison guards accused of mistreating prisoners in police stations and gaols. The ISP, Nodo50, was forced to close the site under threat of a huge fine, but mounted a campaign to protest this censorship14. Mirrors were set up in various countries, and the APD has attempted to close some of these also15. The APD imposed a fine of 60 million pesetas (more than 360.000 euros) on the ACT. The power of the APD to close sites which it considers contravene the Data Protection Act is huge, and is a possible threat to the freedom of expression on the Internet.
Recently, the right of the Spanish unions to communicate freely with their members via mail has been threatened by one of Spain's main banks. The BBVA placed a filter in its Internet server which prevented the unions from sending emial to their members, and the unions demand that their right to communicate with their members via traditional means such as postal mail, won after many years of struggle, should be extended to mail.. The Asociación de Internautas and Kriptópolis16 have launched a campaign to defend this right17, and the Workers Commissions Union (CCOO) has taken the bank to court. A shop floor committee president was dismissed for using Internet in work hours which has also resulted in a court case. Meanwhile, agreements about this use of email have been signed with other banks, other unions have joined the struggle, the unions and the Senate have proposed legislation, and the whole issue promises to be a bitter and drawn out dispute.18
In general, the Government has been slow to react to the recent rapid growth of Internet use in Spain. But the campaigns against the power of the telephone companies have created a growing sense of the need to organise to defend the rights of Internet users.
7. http://www.cmt.es/cmt/centro_info/legislacion/index.htm, and http://www.sgc.mfom.es/legisla/legisla.htm#nacional, http://www.internautas.org/documentos.html, http://www.aui.es/biblio/documentos/politica_espanola/ipolitica_espanola.htm
8. cf "Censura privatizada: ¿Quiénes son los editores en Internet?", Javier Villate, http://publicaciones.derecho.org/redi/No._03_-_Octubre_de_1998/villate3, and for more links on privacy: http://publicaciones.derecho.org/redi/Index_General_/1
9. eg the Asociaciónde Internautas http://www.internautas.org/documentos/senado57.htm the Asociación de Usuarios de Internet http://www.aui.es/biblio/documentos/politica_espanola/comentarios_ley_si.htm FrEE, http://www.arnal.es/free/docs/senado.html(cf also "Democracy in the Net", http://www.arnal.es/free/docs/democ.htm
10. http://www.internautas.org/documentos//decla_dere.htm and http://www.aui.es/biblio/documentos/politica_espanola/Decl_Senado.htm
13. http://www.nodo50.org/censura_act/docs/ACTenglish.html (home page text in English)
17. http://social.internautas.org/campriv.htm, http://www.elmundo.es/navegante/diario/noticia.html?vs_noticia=/2001/1/9/979057561.xml