Carlos Valls Martínez
Socio/Partner - Augusta Abogados
Defamation, Privacy and Data Protection
Contributors: Carlos Valls (Partner) and Isabel Freijo Vázquez (Abogada/Lawyer), Augusta Abogados
The right to honour is a fundamental right, which is afforded special protection, being enshrined in article 18 of the Spanish Constitution of 1978. Its aim is to safeguard the dignity of the person against possible attacks on their reputation, privacy and image.
The wording of the Constitution approaches the right to honour very closely to the rights to privacy and to one’s own image, since the three rights are linked to the moral integrity proclaimed in article 15 of the Constitution. Despite the close link between them, they are autonomous and distinct rights, such that a breach of one does not necessarily imply a breach of the others.
In crimes against an individual’s honour there is an important element that aggravates the breach, which is its publicity, whether in written media, such as a newspaper or magazine, or spoken, that is, on radio, television, or before a plurality of people. In the act of publicizing a message which could be deemed as an attack on someone’s honour, the competing right to be taken into account in assessing a potential breach of this fundamental right to honour is the right to freedom of expression, as enshrined in Article 20.1 of the Spanish Constitution. This right sometimes prevails, as we will see below, because of its double significance as a right to freedom and as an institutional guarantee for public debate and the formation of a free public opinion, which is essential for a democratic society.
The Spanish legal system includes a series of mechanisms for the protection of the right to honour: the right to a correction, as well as the double alternative jurisdictional route: civil and criminal.
If the breach has been committed by the publication of information in the media, Organic Law 2/1984, of 26 March, which regulates the right of correction, includes a mechanism for both natural and legal persons to force the immediate correction of the harmful information. The mechanism involves sending a written correction to the director of the relevant media organisation within seven calendar days following the publication or dissemination of the information to be corrected, by way of recorded delivery and retaining evidence as to the date on which the correction was sent. The director of the media organisation must publish the correction in full within three days of receipt of the request for correction, without comments or notes that interpret the correction (“apostillas”).
If the offended parties are minors (i.e. individual under the age of 18), it will be necessary to refer to Organic Law 1/1996, of 15 January, on the Legal Protection of Minors, partial modification of the Civil Code and the Law on Civil Procedure, and specifically, to the provisions in this regard in Art. 4, Organic Law 1/1996, of 15 January.
If a party chooses to go down the civil route, the procedure involves going before the Court of First Instance, in which the Public Prosecutor will be a party. The case will be given preferential status, meaning that it follows an accelerated procedure and is processed and decided without delay (by exception to the general rule which is that proceedings should be dispatched in the sequential order in which they are initiated). This is an expedited procedure, that is, the essential formalities are deleted or reduced to the bare minimum. The aggrieved party is also allowed to request the payment of damages.
The criminal route is a last resort, which is only used for the more serious breaches of an individual’s right to honour (or privacy, or to one’s own image). For the most serious allegations, the publication complained of can be characterised as a crime against the honour, within the meaning of article 208 of the Criminal Code, which defines it as “the action or expression that injures the dignity of another person, undermining his fame or attacking his own esteem”. This is approached as a crime against an individual’s moral integrity (article 173.4 Criminal Code).
The Spanish Supreme Court’s decision of 28 September 1998 establishes that the individual’s choice to opt for either the civil or the criminal procedure to complain about an allegation is a true choice. In other words, whether to go down the civil or the criminal route is entirely the claimant’s decision.
With regards to a civil claim, this must be brought within four years from the date on which the claimant is in a position to take action against the breach of their right of honour. On the other hand, the Spanish Criminal Code (article 131.1) requires that any action be started within a year of the date on which the offence was committed. If a claimant opts to go down the criminal route, the limitation period for any civil action continues to run in parallel and is not interrupted by the commencement of criminal proceedings.
The rules on data protection originate from Organic Law 3/2018 of 5 December, which implements the General Data Protection Regulation (GDPR). Its purpose is to guarantee and protect, with regard to the processing of personal data, public liberties and fundamental rights of natural persons and especially their honour and their right to private life (both their own and that of their family). This law applies to personal data contained in automated files, and to all forms of subsequent use.
No right is absolute. Instead, all rights are subject to limits, and the right to honour is no exception.
Where public figures are involved, the case law of the Spanish Constitutional Court gives more weight to the protection of freedom of expression, effectively resulting in a more limited protection of those public figures’ right to honour or privacy. However, the primacy given to freedom of expression is subordinated to the fact that the materials complained of must relate to matters of public interest, and be true. In relation to the truth of the allegations, article 20 d) of the Spanish Constitution does not protect all kinds of information, but only those which are true. In practice, this creates an obligation on media organisations to conduct themselves diligently; this being assessed by reference to the diligence which would be exercised by a fair media professional in their attempts to ascertain the truth, which contributes to the formation of public opinion.
Proceedings involving breaches of the rights of honour, privacy and one’s own image, are not limited to the recognition of the existence of breaches and the award of damages for such breaches. Pursuant to article 9.2 of Organic Law 1/1982, proceedings can also be instigated with a view to requesting that all necessary measures be adopted to put an end to the illegitimate interference with an individual’s rights, and to restore the injured party to the full enjoyment of their rights, as well as to prevent further interference. Such measures may include precautionary measures aimed at putting an immediate end to the unlawful interference, as well as requests for the Court’s recognition of a right to correction, a right to publicise the judgement, and to receive damages for harm suffered.
An illustration of this can be found in a widely known case in which the judge of First Instance and Instruction No. 7 of Collado Villalba (Madrid), by Resolution of 12 February 2018, adopted an interim measure which consisted in temporarily seizing and withdrawing from circulation a book entitled Fariña (concerning drug trafficking in Galicia). The measure was put in place until a decision was given on the merits of proceedings filed by a mayor of a Galician town concerning an alleged breach of his right to honour based on the allegations made against him in the book (that he was linked to drug trafficking).
In general terms, Spanish case law attributes to freedom of expression an initial preference over the right to honour, “because of its dual character of individual freedom and institutional guarantee of a public opinion indissolubly linked to political pluralism within a democratic State”.
However, from a constitutional point of view, the protection of the individuals’ fundamental rights (including their right to honour) must be afforded specific protection and can only give precedence to the competing right of freedom of expression where this is used for the purposes of a general interest deserving of greater constitutional protection. An example of this is the creation of a free public opinion, which is considered to be part and parcel of a legal system that guarantees, as established in article 10 of the Constitution of Spain, the “dignity of the person” and “the inviolable rights inherent to it”.
When assessing the unlawfulness of the exercise of the right to freedom of expression, Spanish case law therefore evaluates the public relevance of the matter, whether the individual who is the subject-matter of the allegations is a public person, and in particular whether or not they hold public office, as well as the form and context in which the allegations complained of are produced.
Another example of this can be found in a case of the Spanish Constitutional Court in which a well-known radio journalist, reporting on a meeting between a terrorist group and the then acting president of the Catalonian government, used pejorative terminology to refer to him, which resulted in proceedings being issued against the journalist for attacking the politician’s right to honour. The Constitutional Court acquitted the journalist and the network in which he worked, stating the following: “It is true that such expressions are within the limits of what is admissible due to their markedly hurtful and excessive nature, but the statements made on the radio programmes examined are protected by freedom of expression, insofar as they are part of a public debate of notorious interest, were pronounced by a journalist and referred to the activity of political leaders as such, which broadens the limits of permissible criticism, since it is a debate of relevant general interest, which entails a risk that the subjective rights of public persons may be affected by such opinions of general interest, as required by political pluralism, tolerance and the spirit of openness, without which there is no democratic society”.
The Spanish Supreme Court has also recently leaned in favour of the right to freedom of expression. In the Cassandra Vera case, comments were published on Twitter joking about the terrorist attack perpetrated by ETA in 1973 against Carrero Blanco. That attack had resulted in the death of the former president of the government and right hand of dictator Francisco Franco. The lower courts considered that the jokes violated the right to honour of the deceased and sentenced Ms Vera to one year in prison and 7 years of professional disqualification. Reversing their decisions, on 26 February 2018, the Spanish Supreme Court acquitted Ms Vera of the sentence imposed by the National High Court in 2017, expressing strong support in favour of the right to freedom of expression.
Contributor: Carlos Valls (Partner)
ía Augusta 252, 4ª – 08017
The material in this Guide is for general information only and does not constitute legal advice.
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