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321 lines
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<html newsdate="2026-02-05">
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<head>
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<title>The social value of the freedom to study source code in the Spanish Court</title>
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</head>
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<body>
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<h1>The social value of the freedom to study source code in the Spanish Court</h1>
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<p>While copyright and licensing currently form the core legal
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structures that support Free Software, a September 2025 ruling from the
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Spanish Supreme Court provides a legal precedent that underlines the
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importance of transparency in source codes and algorithms, and support
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for the Freedom to Study!</p>
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<figure>
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<img src="https://pics.fsfe.org/uploads/medium/93/83/687ffb42f603093058f27542faea.jpg" alt="A wide-angle view of the top of the Spanish Supreme court, a stone building with classical statues along the roofline, the letters Tribunal Supremo and a large red and yellow Spanish flag flying above"/> Photo provided by Spanish Supreme Court. Modified to 16:9 aspect
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ratio.
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</figure>
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<p>In 2009, the Spanish central government passed a <a href="https://www.boe.es/diario_boe/txt.php?id=BOE-A-2009-7581">law to
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award a so-called “social bonus”</a> to an estimated 5 million
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households, in order to subsidise their electricity costs. A 2016 court
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ruling later compelled the government to introduce stricter rules
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regulating who could receive this social bonus. All existing
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beneficiaries were required to re-register by the end of 2018, whereupon
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their eligibility for the social bonus would be re-evaluated by a
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software known as BOSCO, administered by the Spanish Ministry for Green
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Energy Transition (the “<strong>Ministry</strong>”).</p>
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<p>Following this re-evaluation, close to <a href="https://algorithmwatch.org/en/spain-legal-fight-over-an-algorithms-code/">1.5
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million beneficiaries were approved for the social bonus</a>. This was
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almost a million fewer than the 2.4 million under the previous scheme,
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and significantly less than the estimated 4.5 million who fulfilled the
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criteria to receive the social bonus in the first place. Several
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applicants who had been rejected contacted <a href="https://civio.es/">Civio</a>, a non-profit based in Madrid that
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works to <a href="https://civio.es/en/about-us/">investigate
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shortcomings in the public sector</a> and advocate for positive changes
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to support transparency and social support, raising suspicions that the
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BOSCO software had failed to properly review their claims. </p>
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<p>As highlighted by <a href="https://algorithmwatch.org/en/spain-legal-fight-over-an-algorithms-code/">AlgorithmWatch</a>,
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one of the complaints to Civio involved a retired widower who applied
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for the social bonus under means testing. Under the regulations, she
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would still be eligible for the bonus due to her status as a retiree and
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a widower, even if her income exceeded the maximum to be eligible under
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means testing. BOSCO nevertheless discarded her application
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automatically.</p>
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<p>Civio therefore contacted the Ministry to ask for BOSCO’s source
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code, in order to confirm the veracity of the testimonials that they had
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received, as well as to check for other malfunctions. In response, the
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<a href="https://consejodetransparencia.es/en/consejo-transparencia/que-es">Council
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of Transparency and Good Governance</a> (the “Council”), Spain’s freedom
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of information authority, denied Civio’s request, on the grounds of
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protection of “intellectual property rights”, and protection of personal
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data. This in turn prompted Civio to <a href="https://civio.es/novedades/2019/07/12/being-ruled-through-secret-source-code-or-algorithms-should-never-be-allowed-in-a-social-and-democratic-state-under-the-rule-of-law/">file
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an administrative appeal</a>, which kicked off the lengthy judicial
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process that concluded in September 2025 in the Supreme Court of Spain
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(the “Court”).</p>
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<p>The <a href="https://civio.app.box.com/s/2gcrxy4mkpzg49yqkmuaj9z7c44jl7ta">Supreme
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Court ruling</a> displayed a general support of transparency and the
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Freedom to Study, by clearly stating that Civio’s initial request for
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access to BOSCO’s source code should be granted. <span class="standout-text-bggreen">In doing so, the Court
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has now established a concrete legal precedent in Spain that the Freedom
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to Study is constitutionally necessary in the context of publicly
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administered software programmes a algorithms, and in accordance with
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principles inherent to a democratic state </span>.</p>
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<p>Explaining its position, the Court stated that:</p>
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<blockquote>
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<p>“<em>… the right to access to public information transcends its
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status as an objective principle governing the actions of public
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administrations, to constitute a constitutional right that can be
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exercised, as a subjective right, against administrations, derived from
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the demands of democracy and transparency, and inseparably linked to the
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democratic rule of law set out in Article 1 of our
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Constitution.</em>”</p>
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</blockquote>
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<p>In simpler terms, the Court’s analysis on the importance of public
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transparency relating to software programmes and algorithms can be
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broken down into the following key findings:</p>
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<ol>
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<li>Access to source code can be needed to verify automated government
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decisions;</li>
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<li>“Intellectual property rights” do not automatically block
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transparency;</li>
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<li>Security concerns must be balanced against democratic
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accountability; and</li>
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<li>Transparency is especially critical for systems affecting social
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rights.</li>
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</ol>
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<h3>Access to Source Code For Verification</h3>
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<p>In reviewing Civio’s request for access to BOSCO’s source code, the
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Court was quick to emphasise that the validity of public administrations
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to make use of automated decision-making systems was not in question.
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Indeed, it recognised that such automated processes were often essential
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for efficiency and adequate provision of public services. </p>
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<p>Rather, the Court stressed the need for the principle of transparency
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to continue to be observed even in the use of such automatic systems, as
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enshrined in Article 105.b of the <a href="https://www.senado.es/web/conocersenado/normas/constitucion/detalleconstitucioncompleta/index.html">Spanish
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Constitution</a>. It is therefore a legal requirement in Spain for
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public administrations to allow citizens to access fundamental features
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of the algorithms used in decision-making, or their source code.</p>
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<p>The Court considered such transparency to be associated with an
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important broader concept that it called “digital or electronic
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democracy”:</p>
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<blockquote>
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<p>“<em>Digital democracy is not only a technological extension of
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representative democracy, but also the fruit of a real structural
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transformation in the democratic functioning of public authorities,
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characterised by the validity of the principles of transparency,
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participation, and accountability in a digital environment, where access
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to public information and algorithmic transparency play an essential
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role in guaranteeing it.</em>”</p>
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</blockquote>
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<p>Public authorities are therefore obliged to allow citizens to
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understand how algorithms used in decision-making that affect citizens
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work. The Spanish Supreme Court considers that doing so would be inline
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with the principles of digital democracy, in order to allow citizens to
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know, control, and participate in public management.</p>
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<h3>“Intellectual Property Rights” and Security Concerns vs Democratic
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Accountability</h3>
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<p>In Spain, Article 14(1)(j) of the <a href="https://www.boe.es/eli/es/l/2013/12/09/19/con">Spanish Law on
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Transparency, Access to Public Information and Good Governance</a> (the
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“LTAIBG”) allows access of information to be limited if such access is
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detrimental to what they referred to as “intellectual property rights”.
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Indeed, throughout the litigation of this case, the Ministry relied on
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this provision to argue on the vague and unspecific claim that BOSCO’s
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source code was protected generally by “intellectual property rights”,
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which gave the Ministry the option to refuse to share BOSCO’s source
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code with Civio.</p>
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<p>Similarly, Article 14(1)(a) of the LTAIBG restricted access of public
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information on national or public security grounds, and was also relied
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on by the Ministry in its arguments to refuse access to BOSCO’s source
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code.</p>
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<p>The Court found that, while the right to access of public information
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is neither unlimited nor absolute, the restrictions stated in the LTAIBG
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must be applied in a manner that is justified and proportionate. This in
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turn has to be decided by a weighing of the interests at stake, namely
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the importance of the access to public information on the one hand, and
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the importance of protecting the rights of the copyright holders of
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BOSCO, or of any national security concerns, on the other. Indeed, it
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considered that while copyright and security concerns are important
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considerations, they cannot be invoked as automatic shields for
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secrecy.</p>
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<p>When weighing these interests against each other, the Court gave
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particular importance to Civio’s request for BOSCO’s source code. It
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recognized that the public relevance of Civio’s investigation into
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whether BOSCO was functioning correctly was of significant magnitude: it
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served to ensure the protection of consumers who are in a more fragile
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social and economic situation, specifically in this case to protect them
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against energy poverty.</p>
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<p>Accordingly, the Court found that the mere risk of possible harm to
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the “intellectual property rights” of the public administration was not
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sufficiently important enough to be considered valid grounds for
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refusing Civio’s right of access, when weighed against the significance
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of Civio’s investigation. </p>
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<p>Similarly, when considering possible risks to public security, the
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Court found that a request for source code and algorithmic transparency
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does not contain or include personal data of the citizens applying for
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the social bonus. This was sufficient for the Court to consider that the
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public interest for Civio to access BOSCO’s source code outweighed any
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public security concerns. </p>
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<div class="standout-text-bggreen">
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<p>Interestingly, the Court further noted that even if access to BOSCO’s
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source code could potentially increase certain security risks,
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transparency itself can contribute towards counterbalancing this risk,
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since it would: </p>
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<ol>
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<li>encourage the administration to take security precautions in the
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design and control of the software; and </li>
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<li>allow scrutiny from independent actors to reveal previously
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unnoticed vulnerabilities.</li>
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</ol>
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</div>
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<h3>Transparency is Critical for Social Rights</h3>
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<p>By coming to the above conclusions, the Court further acknowledged
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that the right of access to public information takes on special
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relevance in light of how digital technologies are exercised in the use
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of public powers and the provision of public services. Such use of
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computerized and automated decision-making systems in public
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administration, especially when their purpose is the recognition of
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social rights, must necessarily entail transparency of the computer
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processes followed in such actions. </p>
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<p>This kind of transparency, which the Court recognized to include the
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possibility of access to source code, has the effect of providing
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citizens with the necessary information for their understanding and
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knowledge of their operation, in order to make it possible to check the
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conformity of such systems against the applicable regulatory
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provisions.</p>
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<p>Indeed, the Court recognized that such fundamental principles of
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transparency and access to public information in the public use of
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digital technology are not just unique to Spanish jurisdiction, but are
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also the logical extension of Article 42 of the <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012P/TXT">Charter
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of Fundamental Rights of the European Union</a> (the “CFR”):</p>
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<blockquote>
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<p>“Any citizen of the Union, and any natural or legal person residing
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or having its registered office in a Member State, has a right of access
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to documents of the institutions, bodies, offices and agencies of the
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Union, <em><strong>whatever their medium</strong></em>.”</p>
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</blockquote>
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<h3>The Importance of the Freedom to Study to a Healthy Digital
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Society</h3>
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<p>The Spanish Supreme Court’s conclusions in the BOSCO case clearly
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lays out the importance of transparency of source code and algorithms in
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public administrations, and how they are important to the healthy
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functioning of societies that depend on digital technology. It is
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gratifying to see a European court clearly lay out how important it is
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to have public access to knowledge on how software and algorithms work,
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especially when they have significant impact on the lives of individuals
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at large.</p>
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<p>Nevertheless, while we appreciate the recognition of the importance
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of transparency in publicly administered source code by the Spanish
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Supreme Court here, this case only establishes this limited standard in
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Spain. While the aforementioned Article 42 of the CFR <em>can </em>be
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interpreted to include algorithmic transparency and access to source
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code used by public administrations, the interpretation taken by the
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Spanish Supreme Court is still not a unified stance seen throughout the
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EU.</p>
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<p>Still, some positive steps can be seen in other European
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jurisdictions. For example, in France, the Digital Republic Law ("<a href="https://www.legifrance.gouv.fr/loda/id/JORFTEXT000033202746">Loi
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pour une République numérique</a>”) of 2016 codifies source code as part
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of government documentation that must be released in certain
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circumstances. Of course, this does not necessarily mean that all
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publicly administered source code is immediately available in practice
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in France, as there have been cases in the past of the <a href="https://ai-lawhub.com/2020/04/16/french-parcoursup-decision/">French
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courts blocking access</a> even after the Digital Republic Law came into
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force. </p>
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<p>There also remain other EU jurisdictions that are resistant to the
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public access of state administered code. For example, in the
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Netherlands, the <a href="https://debatdirect.tweedekamer.nl/">Debat
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Direct app</a>, which allows the public to view livestreams of the
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debates in the Dutch House of Representatives (Tweede Kamer), is only
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available in the Apple, Google, and Microsoft app stores and is not
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available under a Free Software licence. When FSFE Dutch volunteer Jos
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van den Oever was unable to run the app on his devices and <a href="/news/2021/news-20210611-01.html">made a
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request for the Debat Direct source code from the Dutch parliament</a>,
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the resulting legal proceedings unfortunately resulted in a ruling that
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the code should remain unavailable to the public.</p>
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<h3>The Way Forward to Guaranteeing all Four Freedoms </h3>
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<p>In addition to the Freedom to Study, an informed and empowered
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citizenry also needs <a href="/freesoftware/freesoftware.html#freedoms">other
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freedoms that come with Free Software</a>, in order to enjoy true
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sovereignty in our current society that is defined by its reliance on
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digital technology. We therefore ask that the European courts take a
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leaf from the Spanish Supreme Court’s book in weighing the true social
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costs of non-free publicly administered algorithms and programmes,
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especially when faced with arguments for the mere sake of protection of
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intellectual property.</p>
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<p>Indeed, this is exactly why the FSFE’s <a href="https://publiccode.eu/">Public Money? Public Code!</a> (PMPC)
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campaign has been working to ensure that this philosophy of
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transparency, collaboration, and innovation in public administrations is
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upheld throughout Europe. Software used by public administrations have
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the ability to closely affect the lives of the public, regardless of
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whether or not these members of the public are users of the software.
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Having such software be released as Free Software returns control of
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public administration to the people, and is a crucial step to ensure
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digital democracy. </p>
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</body>
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<sidebar promo="our-work">
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<cite>This publication is part of the FSFE’s
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Legal Column aimed at offering basic legal guidance on various issues
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related to Free Software. Please note that this article does not
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constitute legal advice. If you have a legal or licensing question related to Free Software
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that is not covered here or in any of our other resources, you can
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consider asking our <a href="/activities/licence-questions/licence-questions.html#lqteam">License
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Questions team</a> by sending them an email at <email>licence-questions@fsfe.org</email>.</cite>
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</sidebar>
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<tags>
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<tag key="community">Community</tag>
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<tag key="front-page"/>
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<tag key="legal">Legal</tag>
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<tag key="licensing">Licensing</tag>
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<tag key="legal-corner">Legal Corner</tag>
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<tag key="highlights">highlights</tag>
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</tags>
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<discussion href="https://mastodon.social/@fsfe/116018000300524055"/>
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<image url="https://pics.fsfe.org/uploads/medium/93/83/687ffb42f603093058f27542faea.jpg" alt="A wide-angle view of the top of the Spanish Supreme court, a stone building with classical statues along the roofline, the letters Tribunal Supremo and a large red and yellow Spanish flag flying above"/>
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<translator/>
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</html>
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