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The social value of the freedom to study source code in the Spanish Court
While copyright and licensing currently form the core legal structures that support Free Software, a September 2025 ruling from the Spanish Supreme Court provides a legal precedent that underlines the importance of transparency in source codes and algorithms, and support for the Freedom to Study!
Photo provided by Spanish Supreme Court. Modified to 16:9 aspect
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In 2009, the Spanish central government passed a law to award a so-called “social bonus” to an estimated 5 million households, in order to subsidise their electricity costs. A 2016 court ruling later compelled the government to introduce stricter rules regulating who could receive this social bonus. All existing beneficiaries were required to re-register by the end of 2018, whereupon their eligibility for the social bonus would be re-evaluated by a software known as BOSCO, administered by the Spanish Ministry for Green Energy Transition (the “Ministry”).
Following this re-evaluation, close to 1.5 million beneficiaries were approved for the social bonus. This was almost a million fewer than the 2.4 million under the previous scheme, and significantly less than the estimated 4.5 million who fulfilled the criteria to receive the social bonus in the first place. Several applicants who had been rejected contacted Civio, a non-profit based in Madrid that works to investigate shortcomings in the public sector and advocate for positive changes to support transparency and social support, raising suspicions that the BOSCO software had failed to properly review their claims.
As highlighted by AlgorithmWatch, one of the complaints to Civio involved a retired widower who applied for the social bonus under means testing. Under the regulations, she would still be eligible for the bonus due to her status as a retiree and a widower, even if her income exceeded the maximum to be eligible under means testing. BOSCO nevertheless discarded her application automatically.
Civio therefore contacted the Ministry to ask for BOSCO’s source code, in order to confirm the veracity of the testimonials that they had received, as well as to check for other malfunctions. In response, the Council of Transparency and Good Governance (the “Council”), Spain’s freedom of information authority, denied Civio’s request, on the grounds of protection of “intellectual property rights”, and protection of personal data. This in turn prompted Civio to file an administrative appeal, which kicked off the lengthy judicial process that concluded in September 2025 in the Supreme Court of Spain (the “Court”).
The Supreme Court ruling displayed a general support of transparency and the Freedom to Study, by clearly stating that Civio’s initial request for access to BOSCO’s source code should be granted. In doing so, the Court has now established a concrete legal precedent in Spain that the Freedom to Study is constitutionally necessary in the context of publicly administered software programmes a algorithms, and in accordance with principles inherent to a democratic state .
Explaining its position, the Court stated that:
“… the right to access to public information transcends its status as an objective principle governing the actions of public administrations, to constitute a constitutional right that can be exercised, as a subjective right, against administrations, derived from the demands of democracy and transparency, and inseparably linked to the democratic rule of law set out in Article 1 of our Constitution.”
In simpler terms, the Court’s analysis on the importance of public transparency relating to software programmes and algorithms can be broken down into the following key findings:
- Access to source code can be needed to verify automated government decisions;
- “Intellectual property rights” do not automatically block transparency;
- Security concerns must be balanced against democratic accountability; and
- Transparency is especially critical for systems affecting social rights.
Access to Source Code For Verification
In reviewing Civio’s request for access to BOSCO’s source code, the Court was quick to emphasise that the validity of public administrations to make use of automated decision-making systems was not in question. Indeed, it recognised that such automated processes were often essential for efficiency and adequate provision of public services.
Rather, the Court stressed the need for the principle of transparency to continue to be observed even in the use of such automatic systems, as enshrined in Article 105.b of the Spanish Constitution. It is therefore a legal requirement in Spain for public administrations to allow citizens to access fundamental features of the algorithms used in decision-making, or their source code.
The Court considered such transparency to be associated with an important broader concept that it called “digital or electronic democracy”:
“Digital democracy is not only a technological extension of representative democracy, but also the fruit of a real structural transformation in the democratic functioning of public authorities, characterised by the validity of the principles of transparency, participation, and accountability in a digital environment, where access to public information and algorithmic transparency play an essential role in guaranteeing it.”
Public authorities are therefore obliged to allow citizens to understand how algorithms used in decision-making that affect citizens work. The Spanish Supreme Court considers that doing so would be inline with the principles of digital democracy, in order to allow citizens to know, control, and participate in public management.
“Intellectual Property Rights” and Security Concerns vs Democratic Accountability
In Spain, Article 14(1)(j) of the Spanish Law on Transparency, Access to Public Information and Good Governance (the “LTAIBG”) allows access of information to be limited if such access is detrimental to what they referred to as “intellectual property rights”. Indeed, throughout the litigation of this case, the Ministry relied on this provision to argue on the vague and unspecific claim that BOSCO’s source code was protected generally by “intellectual property rights”, which gave the Ministry the option to refuse to share BOSCO’s source code with Civio.
Similarly, Article 14(1)(a) of the LTAIBG restricted access of public information on national or public security grounds, and was also relied on by the Ministry in its arguments to refuse access to BOSCO’s source code.
The Court found that, while the right to access of public information is neither unlimited nor absolute, the restrictions stated in the LTAIBG must be applied in a manner that is justified and proportionate. This in turn has to be decided by a weighing of the interests at stake, namely the importance of the access to public information on the one hand, and the importance of protecting the rights of the copyright holders of BOSCO, or of any national security concerns, on the other. Indeed, it considered that while copyright and security concerns are important considerations, they cannot be invoked as automatic shields for secrecy.
When weighing these interests against each other, the Court gave particular importance to Civio’s request for BOSCO’s source code. It recognized that the public relevance of Civio’s investigation into whether BOSCO was functioning correctly was of significant magnitude: it served to ensure the protection of consumers who are in a more fragile social and economic situation, specifically in this case to protect them against energy poverty.
Accordingly, the Court found that the mere risk of possible harm to the “intellectual property rights” of the public administration was not sufficiently important enough to be considered valid grounds for refusing Civio’s right of access, when weighed against the significance of Civio’s investigation.
Similarly, when considering possible risks to public security, the Court found that a request for source code and algorithmic transparency does not contain or include personal data of the citizens applying for the social bonus. This was sufficient for the Court to consider that the public interest for Civio to access BOSCO’s source code outweighed any public security concerns.
Interestingly, the Court further noted that even if access to BOSCO’s source code could potentially increase certain security risks, transparency itself can contribute towards counterbalancing this risk, since it would:
- encourage the administration to take security precautions in the design and control of the software; and
- allow scrutiny from independent actors to reveal previously unnoticed vulnerabilities.
Transparency is Critical for Social Rights
By coming to the above conclusions, the Court further acknowledged that the right of access to public information takes on special relevance in light of how digital technologies are exercised in the use of public powers and the provision of public services. Such use of computerized and automated decision-making systems in public administration, especially when their purpose is the recognition of social rights, must necessarily entail transparency of the computer processes followed in such actions.
This kind of transparency, which the Court recognized to include the possibility of access to source code, has the effect of providing citizens with the necessary information for their understanding and knowledge of their operation, in order to make it possible to check the conformity of such systems against the applicable regulatory provisions.
Indeed, the Court recognized that such fundamental principles of transparency and access to public information in the public use of digital technology are not just unique to Spanish jurisdiction, but are also the logical extension of Article 42 of the Charter of Fundamental Rights of the European Union (the “CFR”):
“Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.”
The Importance of the Freedom to Study to a Healthy Digital Society
The Spanish Supreme Court’s conclusions in the BOSCO case clearly lays out the importance of transparency of source code and algorithms in public administrations, and how they are important to the healthy functioning of societies that depend on digital technology. It is gratifying to see a European court clearly lay out how important it is to have public access to knowledge on how software and algorithms work, especially when they have significant impact on the lives of individuals at large.
Nevertheless, while we appreciate the recognition of the importance of transparency in publicly administered source code by the Spanish Supreme Court here, this case only establishes this limited standard in Spain. While the aforementioned Article 42 of the CFR can be interpreted to include algorithmic transparency and access to source code used by public administrations, the interpretation taken by the Spanish Supreme Court is still not a unified stance seen throughout the EU.
Still, some positive steps can be seen in other European jurisdictions. For example, in France, the Digital Republic Law ("Loi pour une République numérique”) of 2016 codifies source code as part of government documentation that must be released in certain circumstances. Of course, this does not necessarily mean that all publicly administered source code is immediately available in practice in France, as there have been cases in the past of the French courts blocking access even after the Digital Republic Law came into force.
There also remain other EU jurisdictions that are resistant to the public access of state administered code. For example, in the Netherlands, the Debat Direct app, which allows the public to view livestreams of the debates in the Dutch House of Representatives (Tweede Kamer), is only available in the Apple, Google, and Microsoft app stores and is not available under a Free Software licence. When FSFE Dutch volunteer Jos van den Oever was unable to run the app on his devices and made a request for the Debat Direct source code from the Dutch parliament, the resulting legal proceedings unfortunately resulted in a ruling that the code should remain unavailable to the public.
The Way Forward to Guaranteeing all Four Freedoms
In addition to the Freedom to Study, an informed and empowered citizenry also needs other freedoms that come with Free Software, in order to enjoy true sovereignty in our current society that is defined by its reliance on digital technology. We therefore ask that the European courts take a leaf from the Spanish Supreme Court’s book in weighing the true social costs of non-free publicly administered algorithms and programmes, especially when faced with arguments for the mere sake of protection of intellectual property.
Indeed, this is exactly why the FSFE’s Public Money? Public Code! (PMPC) campaign has been working to ensure that this philosophy of transparency, collaboration, and innovation in public administrations is upheld throughout Europe. Software used by public administrations have the ability to closely affect the lives of the public, regardless of whether or not these members of the public are users of the software. Having such software be released as Free Software returns control of public administration to the people, and is a crucial step to ensure digital democracy.
