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Legal innovation in Industry 4.0




The CNMC and post-truth in the audiovisual sector: Warning received by Atresmedia due to its coverage of Operation Nemo

Carolina Pina (partner at Intellectual Property and Startups & Open innovation departments and at Telecommunications & MediaSports & Entertainment and Fashion Law industries) and Cristina Mesa (senior associate of Intellectual Property and Fashion Law Practices).

The disappearance of the minor, Gabriel Cruz in Almería last February 17, attracted considerable media attention, giving rise to all types of speculation as to his whereabouts. Of the theories that sprung up, extensive coverage was given to the possible involvement of a mentally ill person who had breached a restraining order keeping him away from the child’s mother. In a matter of hours, the State law enforcement agencies and the Ministry of the Interior had ruled out the involvement of this person in the child’s disappearance. Despite this, several television programs continued to speculate about his involvement in the events until the partner of the child’s father was finally arrested.

On July 26, the CNMC issued a decision requiring ATRESMEDIA to stop broadcasting this type of information on the grounds that it breached the General Audiovisual Communication Law (LGCA). The CNMC was especially hard on the way the information had been covered by the two magazine TV shows holding that:

Both programs have been covering the case extensively for a long period of time, broadcasting rumors, hypotheses, speculation and information that has not been crosschecked and without correcting any of the information or apologizing to the individuals involved. This has led to the unnecessary and manifest media persecution and lynching of an individual due to a personal circumstance”.

This has brought the CNMC into the heart of the battle against fake news and post-truth in the television industry. To do so, it has turned to the list of rights held by the public set forth in article 4 of the LGCA, including:

  • Prohibition against hate speech: The LGCA establishes that “audiovisual communication may never incite hatred or discrimination due to gender or any personal or social circumstance and must respect human dignity and constitutional values”.
  • Respect for honor, privacy and individuals’ own image: Secondly, the LGCA establishes that audiovisual communication should respect honor, privacy and individuals’ own image and guarantee the rights of rectification and reply”. For the CNMC, the dissemination of the suspect’s personal data was not only unnecessary, but was used more for speculation rather than informative purposes.

More seriously, the media outlets involved were berated for not issuing a sufficiently clear rectification once the suspect’s participation had been ruled out. As the CNMC stated, the rights of rectification and reply are not only intended to restore the image of the person that has been falsely accused, but also have a direct impact on citizens’ right to receive truthful information.

  • The right to truthful information: Finally, the LGCA establishes that every individual is entitled to informative communications that have been prepared in accordance with the duty to be diligent in verifying the accuracy of the information”. As indicated, freedom of information has two sides that must both be respected: not just the right of media outlets to broadcast information, but also citizens’ right to receive truthful information. Consequently, the right to freedom of information has a counterbalance in the duty to diligently verify the accuracy of the information.

The demand by the CNMC is not just limited to the specific facts and also warns ATRESMEDIA that, in general, broadcasting this type of content may give rise to a penalty proceeding due to a very serious breach of the law. As a television channel, a fine of up to one million euros may be imposed.

The steps taken by the CNMC can be interpreted as an attempt to combat fake news and post-truth. In any event, a careful assessment should be made of the rights at stake in order to avoid excessive interference by the authorities in the freedom of information and expression of media outlets, which we shouldn’t forget, also applies to entertainment and contents that are in bad taste or politically incorrect.