Secrecy and Academic Freedom: Journalistic and Educational Rights in Spain

Item 39 — Secrecy

Secrecy

This right is not fully regulated; it is the journalist's right not to disclose the identity of their source of information. It protects:

• journalistic freedom of information
• the anonymity of the source and the source's safety

In general, it guarantees freedom of communication.

• Right not to testify
• Right not to report

In the case of criminal proceedings (where public interest or confidentiality is not specifically regulated in Spain), the judge must weigh these two parameters, taking into account the seriousness of the crime and the public interest. Also considered is the importance of a disclosure either to punish the crime or to prevent the crime from being committed.

Academic Freedom

Academic freedom is the teacher's freedom of expression in teaching.

Historically (late nineteenth century) this freedom was recognized only for universities. With the Constitution of 1931 (CE, 1931) this freedom extended to public schools, and with the Constitution of 1978 (CE, 1978) it was extended to all public and private institutions.

Content of Academic Freedom

Academic freedom has a negative and a positive dimension.

Negative Dimension

The negative dimension is the right of every teacher to resist any attempt by public authorities to impose an official doctrine.

Positive Dimension

The positive dimension concerns the choice of content and teaching methods (set by the teacher). This right is more or less extensive according to the educational level. At higher levels it is broader; at lower levels the educational authority establishes content and teaching aids.

Limits: academic freedom has the same boundaries as freedom of expression.

At private schools there is a special system of criteria and academic freedom may conflict with the ideals of the institution.

The Constitutional Court (TC) is the body that resolves these conflicts (STC 5/1981).

Criteria

The teacher is not obligated to proselytize the ideology of the institution, but may object. A teacher cannot be forced to expressly declare against the institution's ideology. An explicit declaration opposing the institution's ideology may, however, be grounds for dismissal. The employer must demonstrate that the teacher has expressly declared against the institution's ideology.

In public schools there is a system intended to prevent indoctrination (principle of neutrality).

Limits of Fundamental Rights under Article 20

The limits applicable to the fundamental rights enshrined in Article 20 are:

1. Bound to respect Article 1 of the Constitution.
2. Respect for the laws that develop those rights.
3. Respect for the rights to honor, privacy, and personal image.
4. Protection of children and young people (they receive special protection as fundamental rights).

Laws may set limits to freedom of expression provided they do not violate the essential content of the right.