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“Crimes against the honor”, is titled of the Title XI of the Book II of the Spanish Penal Code (CP). In it we find two kinds of crimes, which are regulated in two different chapters, a first chapter dedicated to the slander and a second to the defamation, though this Title XI has one more chapter, one which contains common dispositions applicable to both crimes.
1) Introduction:
For either the slander or the defamation the legal good protected by the norm is the same, the honor, something which we easily deduce from the title of this Title XI. Right to the honor, which is recognized as a fundamental right by the article 18 of the Spanish Constitution (CE), though in an ambiguous way, for neither the CE nor any other norm defines in which consists this honor protected by the CE. Of this task has been in charge the Spanish Courts, through the jurisprudence, we can see a good example with the Constitutional Court´s sentence number 176/95 of 11 December, which at the same time is mentioned by the Spanish Provincial Court of Madrid´s sentence number 18055/2017: “The common feature of all these attacks or illicit encroachments into the ambit of protection is the depreciation of the alien consideration (art. 7.7 of the Organic Law 1/1982) as consequence of expressions uttered in discredit or contempt of someone or which are publicly regarded as offensive.
All this places us within the territory of the rest, who are not other than the people, whose collective opinion marks in any place or time the tolerance or rejection. The content of the right to the honor is changeable and all in all, as we have already said in other occasion, “depending upon the social norms, values or ideas enforceable in each moment” (Spanish Constitutional Court´s sentence number 185/1989)”.
Therefore, the right to the honor always will protect against expressions which may be regarded as offensive for the dignity of a human being, though this consideration always will depend upon the value given to them by the current society in each time.
Most of you, among whom I include myself, will think that the penal law is not necessary to protect the honor of a person, that, it is enough with the protection granted to it in the civil ambit through the known Organic Law 1/1982 of 5 May, of civil protection of the right to the honor, to the personal and family intimacy and the own image (LO 1/1982), and more concretely through its article 9, where is established (article 9.2) that the judicial protection granted “comprehends the adoption of all the necessary measures for ending an illicit encroachment, and particularly, the necessaries to:
a) The re-establishment of the offended in the full enjoyment of its rights, with the declaration of the encroachment suffered, the immediate cessation of it and the return to its last state. In case of encroachment in the right to the honor, the re-establishment of the violated right will include, without prejudice of the right to reply by the procedure legally envisaged, the entire or only in part publication of the conviction at the cost of the convicted with at least the same public diffusion which had the encroachment suffered.
b) Prevent imminent or subsequent encroachments.
c) The compensation of the damages and prejudiced caused.
d) The appropriation by the offended of the benefits obtained with the illicit encroachment in its rights.”
However, even when this opinion may seem well founded, it is not less true that, the penal ambit has been reserved by the legislator (and the Courts), for the gravest violations to the right to the honor, in fact, to slander means to accuse of person of the commission of a crime, what differs, and a lot, from the simple insult, and the defamation, though being referred to those expressions and actions which may attempt against the dignity of a person, punishes only those cases in which them may be regarded as grave, for the minor defamations were decriminalized with the reform of the CP through the Organic Law 1/2015, except for the cases in which they fit within the article 173.4º CP, which basically punishes the minor defamations between family or spouses.
After this brief introduction, in which we have seen a common feature to them, the legal good honor, let us see how the CP has regulated their protection through the crimes of slander and defamation, for later studying some other aspects related with them.
2) The crime of slander (Chapter I):
As we have already said at the beginning, the crimes of slander and defamation are regulated in the Chapter I and II, respectively, of the Title XI, sharing both crimes the protection of the same legal good, the honor of the offended.
Following the order proposed by the own CP, the first crime that we find is the slander, since it is placed within the Chapter I, which is, likewise, formed by three articles.
Art. 205:
The first article about which we have to talk is the article 205, an important article, since in it we find the legal definition of the crime of slander. The article 205 says:
“Article 205.
It is slander the imputation of a crime made with knowledge of its falsehood or reckless contempt towards the truth.”
As we can observe, the typical behavior which forms the objective elements of the type, consists in “the imputation of a crime”. However, the way in which the article 205 describes the typical action, “the imputation of a crime”, may give rise to confusions, for in reality, it does not consist in the “imputation of a crime”, but in the attribution of facts of criminal character according to the current law, to determined person. The Penal Court´s sentence number 8/2023 says: “Well then, as the sentence 848/2021 of 4 November 2021, Rec. 5254/2019 of the Spanish Supreme Court, Second Chamber, of the Penal, remembers, “the crime of slander, contemplated in the article 205 of the CP, in spite of what may be misunderstood from its misleading wording, does not consist in the false imputation of a crime, in the sense of concrete typical figure precisely typified, but in the false attribution of some facts which, if they were true, would integrate some concrete criminal figure (like, for example, in our sentences number 174/2019, of 22 of April or 500/2021 of 9 June.”
Or the Provincial Court of Murcia´s sentence number 2062/2022: “Upon the requisite of the concreteness of the imputations the Spanish Supreme Court´s sentence of 25 of April 2018 explains that “For integrating the crime of slander are not enough generic imputations. It is essential that they are as concrete that, in the basic, they contain the required elements for defining the crime attributed (Spanish Supreme Court´s sentences of 16 October 1981 or 17 November 1987). This is why, it is not slander, in principle, to call another person “swindler” or “thief”, if are not attributed to it specifically facts which may be typified as these penal figures, without prejudice of being before a defamation. It may be a slander, in certain context, to affirm that someone is a “rapist”, sentence from the European Court of Human Rights of 7 November 2017, Egill Einarsson v. Island. But other expressions like “thief” or “corrupt” or “defrauder” not always lead to a specific penal type and, therefore, are not enough by their own for filling the typicity of the Art. 205 CP. It will depend on the context: “The politician X is a thief” does not mean that he uses force upon the things or violence in the persons for snatching the money; “the company Y swindles its clients” does not mean, if there are no additional clarifications, that it is carrying out the behavior described in the art. 248 CP”.
With regard to the subjective element of the type, the imputation of some facts classifiable as crime should be done “with knowledge of its falsehood or reckless contempt towards the truth”. This transforms the slander into a malicious crime, existing direct malice when the imputation of the facts has been done “with knowledge of its falsehood”, and eventual malice when it has been done “with reckless contempt towards the truth.”
Besides, it is important to take into account that, the precept does not demand an special will aimed at defaming the passive subject. The Provincial Court of Barcelona´s resolution number 1421/2023 says: “In this sense the Spanish Supreme Court´s sentence number 1023/2021 of 12 December, it is remembered that the actual typical description shapes the crime of slander as a malicious infringement, in the form of either direct malice -knowledge of the falsehood of the imputation- or in the modality of eventual malice -reckless contempt towards the truth- both of them exhaust the subjective type, without necessity of demanding an animus difamandi which necessarily is already comprehended by the malice. There exists no dogmatic reasons derived from the wording of the precept for defending what in a plastic expression has been classified as a subjective type as tough and full of demands that conducted to weaken the penal protection of the honor.”
We have already studied the more important aspects of the subjective and objective type, however there are details which we have not covered yet, as for example, that the facts imputed have to be regarded as a public crime, in other words, they have to be prosecutable ex officio. Thereby, in order to sum up all the above and fill the gaps which we may have left by the way, this excerpt from the Provincial Court of Avila is very interesting: “THIRD.- For the purpose of offering an answer to the requests contained in the appeal, it is convenient to remember from the outset that the crime of slander in its current legal shape (article 205 of the Penal Code) is defined as the imputation of a crime done with knowledge of its falsehood or reckless contempt to the truth, considering the doctrine and the jurisprudence as integrating and defining elements, the following:
a.- The imputation to a person of a criminal fact, what is equivalent to attribute to another a criminal infringement which constitutes a crime.
b.- Such imputation has to be false, subjectively not true, with manifest contempt of all confrontation with the reality, or knowing its inaccuracy.
c.- Generic, analogous or feeble attributions are not enough, they have to refer to an unequivocal fact, being aimed the imputation to a concrete and unmistakable person.
d.- Such crime has to be prosecuted ex officio, in other words, it has to be a public crime.
e.- Ultimately it has to have a subjective element which consists in the will of attempting against the honor, fame of the target, this exists when is known the falsehood of the imputation or when is made an imputation without making any checks about the truthfulness of it, this is, “with manifest contempt of all confrontation with the reality” (Spanish Supreme Court´s sentence of 2 February 1995) or “with absolute contempt to the reality”, as is established, for example, by Spanish Supreme Court´s sentence of 16 May 1996, which, besides, precises that, if there is no authentic will of offending the honor of the slandered, there exists no crime, for the so-called defamation for rashness is not typified in the penal law (likewise Spanish Supreme Court´s sentence of 12 July 1991).”
Article 206:
The next article we have to talk about, is the article 206, in it we find the punishments associated to the typical behavior described in the article 205. The article 206 says:
“Article 206:
The slanders will be punished with the punishments of imprisonment from six months to two years or fine from twelve to twenty-four months, if they are propagated with publicity and, in other case, with fine from six to twelve months.”
As we can see, the punishments are heavier if the slanders are carried out with publicity, for in those cases the typical behavior can be punished even with two years of imprisonment.
In any case, this article 206 leaves us with a doubt, when will be understood that a slander has been committed with publicity? This question is solved by the article 211, one of those article which pertain to the Chapter III of the Title XI, where we find the common dispositions to the crimes of slander and defamation.
The article 211 says
“Article 211.
The slander and defamation will be reputed made with publicity when they are propagated by means of the press, the broadcasting or by other means of similar efficacy.”
Therefore, we should understand that the slanders made with publicity are those propagated by any means of communication, without limits, as for example, social media.
Article 207:
Lastly, the last article of which we have to talk about, is the article 207. In it, we find an exemption. The article 207 says:
“Article 207:
The accused for a crime of slander will be exempted from all punishment proving the criminal fact that it has imputed.”
Sincerely, it is an article of which I have not been able to find any practice example, therefore, all that I say about it, must be considered, and is, only my personal opinion. The CE guarantees, among other very important procedural rights, the right to the presumption of innocence in its article 24.2 CE. This right to the presumption of innocence, doubtless, is connected with the right to the honor of the article 18.1, which penally protects the typification of the crime of slander. Thereby, if in a criminal procedure is destroyed such right to the presumption of innocence, the right to the honor will not be affected, for having been proved the facts which until then constituted a slander. Summing up, the only way of proving the criminal facts for being applied the exemption of the article 207, is in a criminal procedure, any other scenario will be out of its scope.
However, this answer may be regarded as simple by those who know a lot about law, and in reality, they may have reason, because it was given when I had not finished yet the Spanish version of this article. Now my answer is more complex, the article 207 is right but only in part, because the Spanish Courts have modulated its reach through their jurisprudence. They have said that, you do not need to proof that what you told was true, you just need to prove that you check well your sources before you attributed to someone a crime. This is especially important if you are a reporter, because sometimes you are not able to find out if the news you are reporting is completely true, but at least you can be diligent. According to the Spanish Courts, the right to the honor is may enter into conflict with other rights constitutionally recognized, like the right to freedom of expression and the right to freedom of information, this is why they have modulated the scope of the former right, to allow enough space for exercising the latter. We are going to give further explanations later, in the point 7.
3) The crime of defamation (Chapter II):
The crime of defamation, is the second of the crimes against the honor which appears within the Title XI. It is regulated in its Chapter II, through three articles.
The first of these articles, is the article 208, which says:
“Article 208.
It is defamation the action or expression which damages the dignity of another person, harming its fame or attempting against its own esteem.
Only will constitute a crime the defamations that, by its nature, effects and circumstances, are publicly regarded as grave, without prejudice of the envisaged in the point 4 of the article 173.
The defamations which consist in imputing facts are not considered grave, save when they have been carried out with knowledge of its falsehood or reckless contempt towards the truth.”
After reading the article 208, we see that the typical behavior consists in carrying out an “action or expression which damages the dignity of another person, harming its fame or attempting against its own esteem.” In a way that, is damaged the legal good protected by the norm, as we already know, the honor of the offended.
Nevertheless, not all the actions or expressions that attempt against the honor of a person may be considered which fit in the article 208, only those which can be classified as grave are penally reproachable, if according to “its nature, effects and circumstances, are publicly regarded as grave.”
With respect to, the subjective element of the type, we are again before a malicious crime, in its modality of either direct malice or eventual malice. However, in the case of the defamations, the article 208 remains silent regarding the element which constitute this malice, remember that in the slanders the imputation has to be done “with knowledge of its falsehood or reckless contempt towards the truth.” We also said that, in the case of the slanders, it is not demanded a special will in the author of the crime, having been discarded by the jurisprudence that along the malice of the author has to exist an specific “animus difamandi”. However, for the defamations this will of the author is going to be an important part, for the Courts have said that without “animus iniuriandi” there is no crime of defamation.
But careful, what we have said is for the basic type of defamations envisaged in the first and second paragraph of the article 208. Because, as we have seen, in the third paragraph of this article there exists a specific kind of defamations, which are only punishable, if this imputation of facts is made “with knowledge of its falsehood or reckless contempt towards the truth.” In my opinion, here the will of the author is again irrelevant, since we have the same criteria followed for punishing the slanders, the imputation of the facts has to be “with knowledge of its falsehood or reckless contempt towards the truth.” We can also consider, that this third point of the article 208, is a bordering point between the slanders and the defamations, being divided both territories mainly, by the circumstance of whether the facts imputed may be regarded as a crime according to the CP or not, though the rests of the requisites mentioned for the slander have to be also fulfilled, for considering as such the attribution of some facts.
Let us see an example, of what the Spanish Court regarding the above. We have a good instance, in the Provincial Court of Oviedo´s resolution number 1531/2022: “SECOND.- The crime of defamation is shaped by the concurrence of the following elements:
a) Objective.- Represented by the expressions uttered, defaming terms, or the actions of humiliating character against the dignity of another, which harm the fame of this, this is the reputation that a person has before the others, or which suppose an attack against its own esteem, in other words, the judgment that a person has of its own worth.
b) Subjective.- It is the «Animus Iniuriandi», subjective element of the unjust and which in reality is the backbone of such specific crime. The jurisprudential doctrine understands this subjective element of the unjust, more than like this element, as the intention or specific malice of causing or originating a damage. This internal feeling, it is well known, that escapes to all direct observation and have to be deduced from a series of previous or present circumstances, for this crime has circumstantial essential character, which will contribute to know the motives that induced the active subject, malicious intention which however disappears when the defaming person or the person who executes the allegedly defaming facts is moved by different motives, as may be, the animus criticandi, the intention of defending with such actions some rights which are considered harmed or the intention of giving advice, relating, correcting, mocking or defamation «iocandi causa», until reaching the more polemic quotes which turn around the rights of information and expression.
c) Quantitative.- It is about the determining assessment of the measure of the offense which serves as gauge for rating the punitive effects (Spanish Supreme Court sentences of 19 January, 23 February, 26 November and 18 December 1982; 31 October and 30 November 1983), in a way that is crime the grave defamation and not the minor, pointing out the law as criteria for determining the gravity of the objective element of the type the nature, effects and circumstances of this in relation to the social outlook.
Likewise, it is jurisprudential criteria for distinguishing the gravity or not of the defamations, the power of the animus iniurandi which concurs in the objective fact, for such will may be quite attenuated when the phrases uttered respond in their use to a state of mind of wrath, of blind rage or passion, which lacks the background of offending the passive subject.
But in any case, has to be taken into account the state of mind of the aggressor with respect to the attacked, the concurring circumstances, the situation in which the expressions are uttered, since all these factors are determining, for though the expressions are important, in a determined status are more important the factors which may accompany them (Spanish Supreme Court 7 July 1992).
Furthermore, it is excluded the will of defaming and is not considered committed the crime of defamation, when it is evident that the main aim was not to defame the person in front of the others, but to show a situation of anger, bling rage, resentment or claim, thereby when the words or phrases respond to a situation of confrontation are deprived of the defaming intention needed for this penal infringement (Spanish Supreme Court´s sentence of 22 October; 16 May 1989; 12 March 1991)”.
This excerpt seems interesting to me too, for the critic it makes of the distinction which exists between the defamations of the chapter 4 of the article 173, and the grave defamations of the article 208. The Provincial Court of Valencia´s resolution number 342/2023 says: “In this point, also introduced by the Code of 2015, is punished as crimes the defamations and unjust humiliations of minor character when they affect any of the persons mentioned in the point 2 of the same article, in other words, in the ambit commonly denominated as domestic violence. The problem posed by the punishment as crime of minor defamations is both constitutional and practice (Vives): constitutional, because the freedom of expression requires a broad space little compatible with the penal punishment of the defamations which may be considered minor; practice, because it results difficult to split these defamations of the usual ambits of discussion. Consequently, the only reasonable interpretation of this precept is that the minor defamations, can only be punished when for their nature, effects or circumstances may be regarded as grave.
In what concerns us now, the minor defamations and the causation of unjust humiliations of minor character are considered as minor offences after the reform of 2015 when the passive subject is one of the mentioned in the article 173.2. Thus, the point 4 of the article 173 expressly says: “Who causes defamation or unjust humiliation of minor character, when the offended is one of the persons to which is referred the point 2 of the article 173, will be punished with the punishment of permanent location from five to thirty days, always in a different domicile and far from the victim, or community service from five to thirty days, of fine from one to four months, the latter only in the cases in which concur the circumstances expressed in the point 2 of the article 84”. The rest of the cases should be resolved through civil litigation, which the legislator understands more suitable for this kind of behaviors. This behavior suffers, therefore, a diminution in its ambit of application, which is left only for when the behavior is committed upon family and persons with whom it lives.”
I do not know what is your opinion, but my opinion is that what we have just read makes equal in practical terms the minor defamations of the article 173.4º and the grave defamations of the article 208, since in both cases, they can only be punished when according to the customs or values they can be regard as grave. But, careful, because it is not less true that, the grave defamations of the article 208 are more punished than the minor defamations of the article 173.4º, what, on the other hand, confirms their different level of gravity, and consequently, the punishing by the legislator of the minor defamations and not the grave. This has another consequence, the grave defamations within the domestic ambit delimited by the article 173.4 should be punished by the article 208, according to the rules of the article 8 of the CP. Though all this, is only my opinion.
Article 209:
In the article 209, is imposed a bigger punishment to the defamations which have been made with publicity. Concretely, the article 209 says:
“Article 209.
The grave defamations made with publicity will be punished with the punishment of fine from six to fourteen months and, in any case, with fine from three to seven months.”
Like with the slanders and its article 206, for interpreting the said by the article 209, we should make use of the article 211. This is why, we remit ourselves to the said in that article.
Article 210:
Let us study first, the content of the article 210.
“Article 210:
The accused of defamation will be exempt of liability proving the truth of the imputations when these are aimed at public servants about facts concerning the exercise of their charges or referred to the commission of administrative infringements.”
In my opinion the wording of the article 210, place us within the ambit of the defamations of the third paragraph of the article 208. In other words, the imputation of facts, when it is carried out “with knowledge of its falsehood or reckless contempt towards the truth.”
However, we have to add something new with respect what we said for commenting the article 207. It is evident, that the existence of the administrative infringements should be proclaimed in an administrative procedure created for this purpose.
4) General Dispositions (Chapter III):
As we said at the beginning, the dispositions relative to the crimes of slander and defamation should be completed, with the said by the Chapter III, where are established some general rules which affect both crimes in the same way.
In order to maintain the structure followed until now, the best will be to comment the articles in the same order proposed by the own CP.
Article 211:
The first article that we find, is the article 211. An article which we have already seen, for we should mention it when we talked about the articles which envisage the punishments for the crimes of slander and defamation (art. 206 and art. 209). Thereby, let us talk of the next.
Article 212:
The next article, is the article 212, of which we have not talked yet. The article 212 says:
“Article 212.
In the cases to which is referred the above article, will be civil jointly liable the physical person or legal entity which owns the means of communication trough which was propagated the slander or defamation.”
In this article 212 is established a joint liability between the direct author of the slanders or defamations and the owners of the means of communication through which have been propagated. That there exists joint liability means that, the offended may exercise the civil action against any of them (art. 109 CP).
This article establishes a different liability than the “general rule” established in the second point of the article 120, where is established a subsidiary liability, between the author of a crime and the owners of a means of communication through which it has been committed. That there exists subsidiary liability means that, the offended by the crime first has to try to obtain the compensation derived from the crime from the main civil liable person, and in the case that the civil liability is not entirely compensated by it, it may start a civil action against the subsidiary civil liable. “Concretely the article 120 says:
“Article 120.
Are also civil liable, in defect of those who are criminally:
2º The natural or legal persons owners of publishing companies, newspapers, magazines, radio stations or tv stations or any other means of written, talked or visual diffusion, for the crimes committed using the media of which they are owners, leaving aside the envisaged in the article 212.”
In my opinion, both articles can coexist taking into account the crime committed by the active subject. On the one hand, if we are before a crime of slander or defamation, there will exist the civil joint liability of the article 212 between the author of the crime and the owner of the means of information. On the other hand, if we are before another kind of crime for which there exists no express disposition about the kind of civil liability, we will apply the general rule of the second point of the article 120.
Here we should open a parenthesis. In the Spanish Criminal Procedural Law (LECrim), there exists another specific procedure denominated, “Of the procedure for the crimes committed by means of the printing press, the engraving or another mechanical means of publication”. In this procedure, we find the article 819, which says:
“Article 819.
When cannot be found out who is the real author of the writing or stamp, or when for being domiciled in a foreign country or any other cause of the specified in the Penal Code cannot be persecuted, the procedure will be aimed against the subsidiary liable persons, by the respective order of the expressed Code.”
In my opinion, this supposes that there exists not only a civil liability shared, either joint or subsidiary, between the author of the defamation or slander and the owner of the means of communication. But, also there exists a criminal subsidiary liability, which seems a lot more relevant, for it extends, in some way, the envisaged in the article 28 CP with respect who can be regarded as author of a crime, furthermore, this procedure would be the only mechanism through which could be established a criminal subsidiary liability, since the authors of the article 28 are all criminal direct liable, and as such, to make criminally liable a person or legal entity which has not participated in the fact from a point of view of strict authorship.
Article 213:
The article 213 says:
“Article 213.
If the slander or defamation was committed through price, reward or promise, the Courts will impose, besides the punishments envisaged for the crimes committed, the special disqualification envisaged in the articles 42 or 45 of the present Code, for a term from six months to two years.”
As we can see, in the article 213 are established three conditions, which fulfilled supposes, besides, the special disqualification for public employment (42 CP) or profession, trade, industry or commerce or other activities (art. 45 CP). These are, to carry out the slanders or defamations for price, reward or promise.
But careful, because this is not the only scenario into which can be agreed a special disqualification as accessory punishment. The article 56.1.3º says:
“Article 56.
1. In the punishments of imprisonment of less than ten years, the judges or courts will impose, taking into account the gravity of the crime, as accessory punishments, some of the following:
3º Special disqualification for public employment or charge, profession, trade, industry, commerce, exercise of the custody, guardianship or custody or foster care or any other right, the privation of custody, if these rights have had any direct relation with the crime committed, being necessary to expressly determine in the sentence this connection, without prejudice of the application of the envisaged in the article 579 of this Code.”
Therefore, in the case that a slander has been punished with the punishment of imprisonment, and they have direct relation with the right exercised, in other words, public employment or charge, profession or trade, they can be also punished with the accessory punishment of special disqualification. On the other hand, given that the defamations can never be punished with a punishment of imprisonment, they can only be punished with an special disqualification in the cases envisaged in the article 213.
Article 214:
Let us now talk about the article 214. This article says:
“Article 214.
If the accused of slander of defamation recognized before the judicial authority the falsehood of lack of certainness of the imputations and he takes back what he has said, the Judge or Court will impose the punishment immediately inferior in degree and will be able to not impose the punishment of special disqualification established in the above article.
The Judge or Court before who was recognized will order the delivery of the testimony of the retraction to the offended, and if it requested it, will order its publication in the same media where the slander or defamation was uttered, in an identical or similar space on which was spread and within the term established by the ruling Judge or Court.”
In this article 214, is rewarded who takes back the slanders or defamations uttered. What is not clear, is the procedural moment in which it can be carried out, it seems to be the oral trial before the judge who tries the facts. That the active subject takes back the slanders or defamations uttered has an automatic consequence and other possible, the first is that the judge or court should impose the punishment inferior in degree, and the second, is the possibility of not imposing the punishment of special disqualification of the article 213. In other words, the judge or court who tried the facts will be obliged to imposed the punishment inferior in degree, but the not imposition of the accessory punishment of disqualification according to the article 213 will be its decision.
Again, careful, because if the accessory punishment has to be imposed as consequence of the said by the article 56.1.3º, the judge or Court will not be able to decide whether to impose it according to the envisaged in this article 214, for it is clearly referred to “the punishment of special disqualification established in the above article.” Furthermore, the punishment of special disqualification of the article 56.1.3º is envisaged as an obligation of the judge or court, it must be imposed it, always that the conditions of this article are met.
This article 214 continues, offering the possibility to the offended of requesting the publication of the retraction from the active subject. This possibility differs from the said by the article 216, which establishes “that the reparation of the damage also comprehends the publication or spreading of the conviction, at the cost of the convicted.” In other words, the conviction has to be always published. What is not as clear, is the relation between both articles, it is evident that even existing a retraction of the active subject there has to be a conviction, this inevitably leads to the its publication according to the article 216, ¿does it mean, that the publication of the retraction should be regarded a fact independent from the conviction, which only takes places if the offended requests it?
Article 215:
The article 215 says:
“Article 215.
1. No one will be punished for slander or defamation but by virtue of lawsuit of the person offended by the crime or its legal representative. The procedure will be initiated ex officio when the offence is aimed at public servant, authority or agent of it about facts concerning the exercise of their charge.
2. No one will be able to initiate a penal action for slander of defamation uttered in trial without the previous authorization of the Judge or Court who knows or has known about it.
3. The pardon of the person offended extinguishes the penal action, without prejudice of the envisaged by the article 130.1.5º second paragraph of this Code.”
The slander and the defamation are two private crimes, like the crimes of discovery and disclosure of secrets (art. 197 – art. 201 CP). This means that they cannot be prosecuted ex officio, they need the previous report of the offended for initiating the criminal procedure. Nevertheless, the crimes of slander and defamation, may be regarded as even “more private”, for while the latter needs the report of the offended or its legal representative, the former requires of a lawsuit. To the above general rule, the own article 215 establishes an exception, the procedure may be initiated “ex officio when the offence is aimed at public servant, authority or agent of it about facts concerning the exercise of their charge.”
Besides, the lawsuit should fulfill the requisites mentioned in the article 277 of the CP. The article 277 says:
“Article 277.
The lawsuit will be presented always by means of Attorney with enough power and subscribed by Lawyer.
It will be written on office-sized paper, and in it will be expressed:
1º The Judge or Court before whom it is presented.
2º The name, surnames and domicile of the plaintiff.
3º The name, surnames and domicile of the defendant.
In the case of ignoring these circumstances, the designation of the defendant should be made by the indications which can describe it better.
4º The account of the fact, with expression of the place, year, month, day and hour in which it was executed, if they are known.
5º Expression of the proofs which should be practiced for the checking the fact.
6º The petition that the lawsuit should be admitted, the proofs indicated in the above number practiced, the detention and imprisonment of the allegedly liable or being demanded to it the bail for provisional freedom, and the seizure of its goods in the necessary quantity.
7º The signature of the plaintiff or of another person at its requests when it cannot or do not know to sign when the Attorney does not have special power for formulating lawsuit.”
Among these requisites, one which has generated jurisprudence, is the requisite that the Attorney should have enough power, since it has been translated by the Spanish Courts, as power for presenting a lawsuit for a concrete crime. The Provincial Court of Almeria´s resolution number 1330/2022 says: “Well then, the expression “power enough” which is employed by this article gave rise to doubts, for while some considered enough a power for exercising criminal actions in general, however, the courts understood that it is required a power for the prosecution of a concrete fact, a “very special power”.
Very special power, that, in terms of the Civil Code, would be that “granted for a determined act” (art. 1712 Spanish Civil Code, therefore, it will demand to delimit the object of the criminal imputation and the concrete persons against which it is aimed.
Very special power in accordance with the definition given by the best scientific doctrine, is “the power granted after the commission of the criminal fact, where is expressly authorized the Attorney for presenting lawsuit precisely for this fact.”
The requisite of enough power demanded to the Attorney, may be obviated with the signature of the plaintiff, in accordance with the seventh requisite of the mentioned article 277 LECrim.
Aside from the presentation of lawsuit, there exist another two requisites which should be fulfilled, one is the demanded by the article 804 LECrim “certification of having celebrated the plaintiff act of conciliation with the defendant, or of having attempted it without effect”, and the other, the one which appears in the article 805 LECrim, “If the lawsuit was for defamation or slander uttered at trial, will be necessary to prove, besides, the authorization of the Judge or Court before whom they were said.” For later adding this article, “This authorization will not be regarded as enough proof of the imputation.” Both articles are found in a special procedure that there exists in the LECrim, for prosecuting the crimes of defamation and slander, the denominated “Of the procedure for crimes of defamation and slander against individuals.”
Either the requisite mentioned in the article 804 or the article 805, are two requisites essential for initiating the procedure, without them a lawsuit cannot be admitted. It means that, to the two requisites mentioned in the article 313 LECrim without which a lawsuit cannot be admitted, that the fact into which is founded constitute a crime and that it has to be lodged before a competent Examining Magistrate, we have to add the certification (art. 804 LECrim) and authorization (art. 805 LECrim) in the case of being necessary. Then, ¿what happens if a lawsuit is lodged but it is not accompanied of the certification and authorization in the case of being necessary? We find the solution to this question in the article 278 LECrim. In it is expressed again the necessity of presenting the certification which proves the celebration, or its attempt, of the act of conciliation between the plaintiff and the defendant when we are before crimes which can only be prosecuted at the request of a party, but it adds that, may be practiced, without fulfilling with the above two requisites but once the lawsuit has been lodged, the proofs or preventive measures of urgent character for the checking of the facts or the detention of the criminal, for subsequently suspending the procedure until proving the fulfillment of both requisites. Therefore, the admission of the lawsuit should be suspended, being practiced, in any case, the proofs or preventive measures of urgent character, and if these defects are not finally remedied the lawsuit should not be admitted.
A problem that may arise is that, while the plaintiff obtains the certification of the preceptive act of conciliation, or while it obtains the authorization of the Judge or Court of the trial where the slander or defamation was uttered, the facts may prescribe. According to the article 131 CP, the crimes of defamation and slander prescribe in one year since their commission. ¿Will the act of conciliation (art. 804 LECrim) or the request of authorization (art. 805 LECrim) suspend the prescription of the crime? We find the solution to this answer in the Spanish Supreme Court´s sentence number 3533/2019, which after a long argumentation concludes that: “3. Taking into account all the exposed, we have to conclude that neither the act of conciliation nor the acts aimed at obtaining the judicial authorization to which is referred the article 215 CP are able to interrupt the prescription.”
In the article 215 is also envisaged that, the pardon of the person offended extinguishes the penal action. Nevertheless, careful, that the pardon of the offended extinguishes the criminal action does not mean that it also extinguishes the civil action, in my opinion, it will only be extinguished if the offended expressly renounces to it.
Article 216:
Of the article 216 we have already talked, at least in part, when we talked about the article 214. Let us see what is said by this article 216:
“Article 216:
In the crimes of slander and defamation will be considered that the reparation of the damage also comprehends the publication or spread of the conviction, at the cost of the convicted for such crimes, in the time and form that the Judge or Court regards more adequate to the aim, heard the two parties.”
The article 109.1 CP says that, “The execution of a fact described by the law as crime obliges to repair, in the terms described by the laws, the damages and prejudices caused by it.”
And the article 110 CP adds, “The liability established in the above article comprehends:
1º The restitution.
2º The reparation of the damage.
3º The compensation of the material and moral prejudices.”
In the case of the crime of slander or defamation, to the said by the preceding articles we have to add the said by the article 216.
5) What happens if the same fact may be regarded as a slander and a defamation?
Imagine that, in a newspaper article there are various expressions, part of them which may be considered as slanders and part of them which fit better as defamations. In these cases, all of them should be punished, as a whole, as a crime of slander, for we would be before a concurrence of norms which should be resolved according to the third rule of the article 8 CP, “3ª. The broader or more complex penal precept will absorb those which punish the infringements included in it.” Without forgetting that, when this slanders and defamations are uttered in more than one occasion, we may be before a continuous crime when the requisites of the article 74 are met, in other words, when various facts which may be regarded as crimes pertain to the same preconceived plan or is taken advantage of the same occasion to commit them, in a way that are carried out a plurality of actions or omissions which offend one or various subjects and infringe the same penal precept or precepts of the same or similar nature.
The Spanish Provincial Court of Cadiz´s sentence number 2840/2022 says: “For that purpose, the sentence in the third and fourth paragraphs of the third legal basis selects, from the whole of the expression that in this third basis and in the above are considered as defamations and that are punished as such, what concretely are regarded as apt for being typified as slanders, which are punished according to the criminal figure. We consider that being expression aimed at the same passive subject and attempting against the same legal good, the honor, the referred fencing of the facts tried for their doble typification and doble punishment is not adjusted to the essential unit and the actuation of the author, without prejudice that its extension and temporal reiteration may justify the appreciation of the criminal continuity.
It is not punished each defaming or slandering phrase separately, nor each defaming or slandering expression independently, but it is attended to the material content of texts as a whole, for only the entire understanding -of each text in its totality and of all of them as a whole- allows to reveal altogether its eventual penal meaning.
This is why, if the all the expressed reach the greatest gravity, the special own typicity of the slander (all slander is, besides, a defamation), has to be this typified graver the one which absorbs to total unlawfulness of the fact, without prejudice -it is repeated- of what can be understood with respect to its continuity or the relevance that may have the repetition and extension of the damaging contents for the individualization of the punishment. There exists a relation of consumption, of concurrence of norms of the article 8.3 CP, between the slander and the defamation which determines that only the first is the typification applicable in the cases in which there occur acts frameable in both categories of crimes.
Thus is considered by the Spanish Supreme Court´s sentence of 8 May 1991 which express that “the greater gravity of the slander permits to invoke the principle of consumption, impeding to punish separately of a expressions, whose autonomous treatment would exceed the intensity of the penal respond”, being examples of this understanding the sentences of the Section 5º of the Provincial Court of Santa Cruz de Tenerife of 19 September 2009 in the appeal 212/2007 and of the Section 8º of the Provincial Court of Barcelona 7 July 2021 in the appeal 131/2020.”
6) The legal entities as active subjects and passive subjects of the crimes of slander and defamation:
We are talking about the legal entities because they are a special case, as special as the legal fiction by which an entity which does not exist outside the agreement of its members in a piece of paper, is subjected to penal liability in determined cases.
We find the penal liability of the legal entities established, in the article 31 bis of the CP, according to which, “In the cases envisaged in this Code, the legal entities will be penally liable.” This means that, the legal entities may be penally liable, but only of the crimes which expressly recognizes this liability, in other words, in the own article of the CP which typifies a behavior, should be established that a legal entity may be liable for that crime. This, for example, happens in the article 343, for the crimes relatives to the nuclear energy and the ionizing radiations.
According to the above, a legal entity cannot be penally liable of the crimes of slander and defamation, because there exists no express disposition determining their liability. But, careful, because we are referring to the penal liability not the civil. As we have already learned when we saw the article 212 CP, the legal entities can be civil jointly liable of a crime of slander or defamation.
In relation with the above, the Spanish Provincial Court of Barcelona´s resolution number 1559/2032 says: “10. In relation with the penal liability of the legal entities – art. 31 bis of the CP-, they can be only criminally liable of those penal types expressly typified for them, element that does not concur for the types of defamation and slander, thereby the lawsuit against the legal entity “Heriques Da Cunha Management S.L. y, BNI Worldwide Developement LTD, franquicia nacional con denominación BNI España S.L.C.” must be unadmitted”.”
A different question is, whether a legal entity may be the passive subject of a crime of slander or defamation. Here the doctrine of the Spanish Courts has suffered an evolution, for at the beginning was asserted that a legal entity cannot be a passive subject, since it was not able to be an active subject of the crime either. But all this doctrine crumbled, once is introduced into the CP the article 31 bis, aforementioned, and which expressly recognized the penal liablity of the legal entities for determined crimes. Therefore, the Spanish Courts reach the conclusion that if they can be active subjects of a crime, they can also be the offended.
As an example of the above, we can mention the Penal Court´s sentence number 8/2023: “4. In relation with the Basque Newspaper and the Society Vascongada of Publications, S.A.
Reached this point has to be analyzed if the Basque Newspaper and, for extension its editing company, Society Vascongada of Publications, S.A., may be the object of slanders or defamations.
It is an already overcome debate; however, initially some sentences from the Spanish Supreme Court denied that a legal entity might be the object of slanders since societas non delinquere potest, declaring that “the passive subject of the slander can be only who have the capacity of committing a crime, and hence, not the legal entities that for their nature cannot carry out criminal actions” (Sentence of 7 December 1989).
By its part, the Spanish Supreme Court´s sentence of 3 December 1993, maybe the most quoted as the precursor of a change of doctrine, affirmed that “the mention that is made to the slander in the number 1º of the article 161 of the Penal Code (old Penal Code of 1973) presents more difficulty in its application since our legal order does not allow that the legal entities can be the active subject of crimes. Some sentences of this Chamber have declared that the passive subject of the slander cannot be other than who has capacity of committing a crime and thereby not the legal entities which by their nature cannot carry out criminal actions (Sentence of 7 December 1989).
Other sentences of this Chamber, on the contrary, admits the possibility that the legal entities may be passive subject of a crime of slander (sentence of 16 October 1989) arguing with the repercussion of the false imputation upon the physical persons of its components. In any case, what cannot be unknowledge is that a doctrinal sector and some sentences of the Constitutional Court have stressed that the honor “has a personal meaning referred to individually considered persons, what makes inadequate talking about honor of the public institutions or of determined classes of the State” (Spanish Constitutional Court´s sentences number 107/1988 and 51/1989) and prefer referring to “the values of dignity, reputation and moral authority of the public institutions and classes of State” (Spanish Constitutional Court 107/1988, 51/1989 and 143/1991).
We should remember that the slander is the imputation of a crime (made with knowledge of its falsehood or reckless contempt to the truth), thus, the slanders to legal entities are intimately connected to the crimes that they can commit as such.
Well then, the Organic Law 5/2010 of 22 June by which was modified the Organic Law 10/1995 of 23 November, of the Penal Code, introduced for the first time in our legal order The Penal Liability of the Legal Entities, forsaking the principle «societas delinquere non potest», therefore in principle, would be flattened the objective element of the crime of slanders for being committed upon a legal entity, here the Basque Newspaper and, by extension, its editing company.”
We find another example, in the Spanish Provincial Court of Madrid´s sentence number 3421/2023: “With respect the condition of the legal entity as victim of the slander, the Spanish Constitutional Court´s sentence of 26 September 1995 exposed: “It is evident, then, that, through the aims for which each private legal entity has been created, may be established an ambit of protection of its own identity and in two different senses, for either defending its identity when it develops its aims, or protecting the conditions for exercising its identity, under which will fall the right to the honor. As far as this is true, the legal entity can be also seen damaged its right to the honor through the spread of facts concerning it entity, when it is defamed or damaged in the alien consideration (Art. 7.7 Organic Law 1/1982)”.
7) The conflict between the right to the honor (art. 18.1 CE), and the rights to the freedom of expression (art. 20.1.a CE) and of information (art. 20.1.d CE):
We already know that in the case of the crime of slander and of defamation, the legal good affected is the honor, understood as the perception which has of a person the rest of the society. However, the protection of this right is never absolute, even for those rights which can be denominated fundamental rights for their location within the CE (art. 14 – art. 29), for in many cases the exercising of another constitutionally recognized fundamental fundamental right may suppose their infringement. For example, the inviolability of the domicile or the secret of the communications are two very important rights (art. 18 CE), but will yield in those cases in which the prosecution of a crime prevails upon them (art. 282 LECrim).
The same happens with the right to the honor, it is a right which in determined occasions will enter into conflict with another that can be also exercised legitimately, we are referring to the right of freedom of expression and information. To determine, which one of the rights is going to prevail is a task of the courts, for which they have elaborated an extensive doctrine.
I could have entertained myself making a brief summary, pointing out the more important points, or simply commenting it, but I think that it is better if you go directly to the source. The Provincial Court of Avila´s sentence number 315/2022 says: “The most discussed question when it is made the necessary judgment of typicity in relation with the behaviors which are invoked as damaging for the honor, it constituted by the exercising of other fundamental rights, in whose pretended protection are tried to include such expressions, essentially the freedoms of information and of expression of the article 20.1 of the Spanish Constitution, this centers the debate in the collision of the fundamental rights and the limits which mark the exercise of them.
For that purpose, the Spanish Supreme Court´s sentence number 232/2002 of 9 December points out that “this court has elaborated a consolidated body of doctrine in relation with the rights regulated in the article 20.1 of the Spanish Constitution (with respect to which we should quate from the contained in the sentence of the Constitutional Court 104/1986 of 17 July to the recognized in the sentence of the Constitutional Court 49/2001 of 26 February, distinguishing between those which guarantee the freedom of expression, whose object are the thoughts, ideas and opinions (broad concept which includes the appreciations and judgements of value), and, on the other hand, the right to communicate information, which is referred to the diffusion of those facts which deserve being considered newsworthy. In relation with the first, being the formulation of “thoughts, ideas and opinions” (article 20.1.a) of the Spanish Constitution), without the intention of establishing facts or affirming objective data, we have said that it has a broad ground of action, which is delimited only by the absence of humiliating expressions (Sentences of the Spanish Constitutional Court 107/1988 8 June, 105/1990 of 6 June, 171/1990 and 172/1990 both of 12 November, 85/1992 8 June, 134/1999 15 July, 192/1999 25 October and Constitutional Court´s resolution 271/1995 of 4 October) which result unnecessaries or impertinent for its exposition. On the contrary, when is shared mere information about facts, the constitutional protection is only extended to the truthful information (article 20.1.d) of the Spanish Constitution). Requisite of trustfulness which cannot, obviously, be demanded of personal and subjective judgements or assessments, without prejudice that, like is just said, in the case of coming this information accompanied of judgements of value or opinions, as in the case of the trial, this latter should be subjected, besides the demands of veracity, to the own common of the freedom of expression (art. 20.1 a) of the Spanish Constitution) this is, to the checking of whether, in the context in which they are employed, they posses an humiliating character (sentence of the Spanish Constitutional Court number 297/2000 11 December, sixth legal basis). Later the Spanish Constitutional Court remember us that the freedom of expression (like the freedom of information) has a special dimension in our legal order “as consequence of it doble character of individual freedom and the guarantee of the possibility of the existence of the public opinion, indissolubly united to the political pluralism of a democratic state (sentences of the Constitutional Court 104/1986 of 17 July and 78/1995 of 22 May, among others)” (sentence of the Constitutional Court 76/2002 of 8 April, third legal basis). In any case, the question of the limits has to be connected with the quality or not of public person of the offended and of whether its public relevance is freely and willingly assumed, as for example with the politics, or on the contrary is imposed by the carrying out a function with undoubtful social transcendence (as for example the police officers or the judges), that makes them sometimes to be the object of critic, situation which escapes the common of the citizens, who, therefore, have to enjoy of an strengthened protection. About this, the above quoted sentence of the Constitutional Court indicates us that “the persons that has a charge of public authority, or which has political relevance, are subjected to critics in a democratic state. But, as has declared this court, this does not mean that, attending to their public character, such persons are deprived of being owners of the right to the honor that the article 18.1 of the Spanish Constitution guarantees (sentences of the Constitutional Court 190/1992 fifth legal basis, and 105/1990 eighth legal basis” (sentence of the Constitutional Court 336/1993 15 November). It is also necessary in this ambit to respect the alien reputation (article 10.2 of the European Convention on Human Rights and sentences of the European Court of Human Rights case Linges de pcho of the month of July of the year 1986 and case Bladet Tromso y Stensaas of 20 May 1999) and the honor, because these rights “constitute a limit of the right to freely express yourself and of the freedom to inform” (sentences of the Constitutional Court 297/2000 of 11 December, seventh legal basis, 49/2002 of 26 February fifth legal basis, and 76/2002 of 8 April second legal basis).
In fact, from the sentence of the Spanish Constitutional Court 104/1986 of 17 July, we have established that, although “the right to freely express opinions, ideas and thoughts (article 20.1.a of the Spanish Constitution) has a scope of action which is only delimited by the absence of expressions undoubtedly humiliating without relation with ideas or opinions which are exposed and unnecessary for its exposition (sentences of the Constitutional Court 105/1990 of 6 June, fourth legal basis, and 112/2000 of 5 May, sixth legal basis), it is not less true that we have also unequivocally maintain that the Constitution does not recognize in any way (neither in this nor in another precept) a pretended right to the insult. The Constitution does not forbid, in any circumstance, the use of harming expressions, but from the constitutional protection granted by the article 20.1.a) are excluded the absolutely humiliating expressions, in other words, those which, given the concrete circumstances of the case and the margin of truthfulness or untruthfulness, are offensive or opprobrious and result impertinent for expressing the opinions or information (sentence of the Spanish Constitutional Court 107/1988 of 8 June, 1/1998 of 12 January, 200/1998 of 14 October, 180/1999 of 11 October, 192/1999 of 25 October, 6/2000 of 17 January, 110/2000 of 5 May and 49/2001 of 26 February” (sentence of the Spanish Constitutional Court 204/2001 of 15 October, fourth legal basis).
In this regard, points out the sentence of the Spanish Supreme Court 202/2018 of 25 April that “the jurisprudence of the Constitutional Court is introduced in the penal ambit concreting the limits of the punishable in the crimes of defamation and slander, through a cause of justification of legitimate exercise of a right (article 20.7 of the Penal Code) according to the most common understanding. A news report, as it is the case, will not deserve penal reproach if the offensive, dishonorable or slandering information is protected by the article 20 of the Spanish Constitution. There will not exist defamation or slander for not being unlawful the behavior on not concurring the cause of justification of legitimate exercise of a constitutional right: the right to freely express and spread thoughts, ideas and opinions, through the word, the writing or any other means of reproduction or, in this case, the right to communicate truthful information by any means of diffusion.
In the jurisprudence is usual this scheme: examination of the possible cause of justification and acquittance by virtue of it if it is checked that the behavior is protected by those rights; or conviction if there has been excesses reproachable from the penal perspective (Spanish Supreme Court´s sentence of 27 November 1989 or Spanish Constitutional Court´s sentence number 2/2001 of 15 January). From 1995, as consequence of the reformulation of the types of defamation and slander in the new penal code, some cases of legitimate exercise of these rights does not need of an exemption: they have been decriminalized (singularly for the demand of a reckless contempt towards the truth regarding to which is referred to the information of facts).
This is why, is this matter, thus happens here, the discussion has to be focused into the question of whether the exercise of the constitutional freedoms of expression and information has been correct and legitimate, whether its limits have not been surpassed and are not identified excesses not covered for such rights. When is not adjusted the exercise of those rights to those limits, which are very broad, we will be, in principle, before a behavior which, if it is typical, it will be also unlawful.
Given the constitutional rank of this rights, the definition of their frontiers and content, how should be interpreted their limits, which are already enunciated in the own Constitution, and in which conditions have to be exercised, for being endowed of constitutional protection, is mainly proportionated by the jurisprudence of the Constitutional Court (article 5.1 Organic Law of the Judicial Branch).
This doctrine demands three requisites for granting constitutional protection to the spread of ideas or information objectively defaming or slandering, according to the article 20 of the Spanish Constitution. A triple test has to be overcome: the test of veracity, the test of necessity and the test of proportionality.
a.- The test of veracity is applicable to the exercise of the freedom of information (imputation of facts). This is the ground where we are mainly moving here, leaving aside some opinion uttered in the whole of the report in an express way (allusion to the confidence) which is not important by its own, and without prejudice of the implicit opinion which springs from the way of presenting the news: upon this we will return.
The trustfulness is fulfilled when the informer has complied with its duty of diligence (Spanish Constitutional Court´s 144/1998 of 30 June and 200/1998 of 14 October or 134/1999). It is not as important, the adequation to the truth or not of the information, as the attitude of the informer. Being important a doctrine whose origin is the American Supreme Court, the demand for truthfulness, has pointed out our Spanish Constitutional Court, is not equal to the exact correspondence with the reality. The communication that the Constitution protects is the one which transmit true information, but from this we do not understand that is left without protection the information whose whole adequation to the facts has not been proven during the process. “When the Constitution requires that the information has to be true, explains the many times quoted Spanish Constitutional Court´s sentence 6/1988 of 21 January, it is not as much depriving of protection the information which may be regarded as wrong, or simply do not proved during the trial, as establishing a specific duty of diligence upon the informer, to whom can be demanded and should be demanded that what it transmit as “facts” have to have been object of a previous contrast with objective data, being deprived of the constitutional guarantee who, defrauding the right of everyone to the information, acts with a contempt for the truthfulness or falsehood of the communicated. The legal order does not grant is protection to the negligent behavior, nor to who communicates as facts mere gossip or, even worse, mere inventions, but it protects, as a whole, the information rightly obtained and spread, even when its complete correctness can be discussed.
In the end, the erroneous affirmations are unavoidable in a free debate, in a way that, if imposed “the truth”, as condition for the acknowledgment of a right, the only guarantee of the legal security would be the silence”.
Has been subjectivized in this way the condition of the trustfulness of the information: “the right to communicate “true information”, though does not leave to protect the discussable information, does require that who transmit it has a specific diligence, since the constitutional right does not only not protect the “information” which is known incorrect by who transmit it, but the spread without being contrasted with objective data and lacking of all factual support, is revealed afterwards as not proven during the course of a process.” A great number of subsequent sentences insist and specify this doctrine, we can mention the Spanish Constitutional Court´s sentences 15/1993 of 18 January, 123/1993 of 19 April, 28/1996 of 26 February or 52/1996 of 26 March. It is moved in this way the debate from the checking of the reality of the information to the degree of diligence applied by the informer: the relevant is not the undiscussable reality of the facts, but the demand of “a special diligence which assures the seriousness of the informative effort because the level of diligence which guarantees the veracity has been situated by this court in the broad space which exists between the strict verification of a fact, at an extreme, and the transmission of suppositions, mere inventions, insidious insinuations or unfounded news when the information may suppose the alien discredit in the other” (Constitutional Court´s sentence 200/1998 of 14 October, which quotes the sentence 139/1995).
The European Court of Human Rights uses similar limits. Thus, the legitimacy and credibility of the source from which is taken the information that may result offensive, excludes the “bad faith”, though there has not been a subsequent verification of the notice and transforms into illegitimate from the point of view of the article 10 of the European Convention on Human Rights (sentence of the European Court of Human Rights of 20 May 1999, Bladet Tromso and Stensaas vs Norway or of 2 June 2015, Erla Hlynsdottir vs Island). Here the core of the information (other way if the form of presenting it) is true. It is gathered from an official source which is spread through internet, presumably for the demand of transparency. Besides, a person in charge of the communication of the entity affected was reached before the publication. Prima facie, there exists no negligence or breaching of the minimum duties of an informer in this point.
We have to qualify, insisting into something already mentioned, that a different question is the manner which is later chosen for transmitting the information in a no neutral way, with an undisguised contemptuous tone and, without doubt, a little manipulated though without being distorted. It is rather connected with the freedom of opinion.
The test of trustfulness cannot be applied upon the emission of opinions: the judgements of value does not allow to prove their exactness (European Court of Human Rights´ sentence of 12 July 2016, Reichman). It is enough with showing the concurrence of an enough factual base for justifying the opinions, though they may result offensive.
This appreciation may be also be applied in relation with the discussable assessment which is made in the article regarding the audacity and more than questionable unlawfulness of similar practices in our country and the confidence of the Spanish Market to which should attend the defendant entity.
b.- The test of relevance is centered in the matter about which are referred the opinion or information. The harming of the right of honor in order to protect the right to the information will be only justified if the information has interest for the aim of formation of the public opinion about matters of which is interested the society. It is not fulfilled this requisite when the information is about facts which lack public relevance for affecting private matters (Constitutional Court´s sentence 154/1999 of 14 September). If it is spread true information, but alien to the sphere of the “newsworthy”, and without public relevance, the behavior is not protected by the freedoms of the article 20 of the Spanish Constitution. The damage to the honor is legitimated when the information has interest for the aim of formation of the public opinion which is in the base of the privileged constitutional place of this freedom for serving the underpinning of a plural and democratic society. Without free information, has said this constitutional court, there is no free public opinion, and without it the constitutional values of pluralism and freedom stumble.
But, when the true information but offensive does not contribute anything to this general aim, it yields in favor of another constitutional goods. Only the “newsworthy” facts, using an expressive terminology from the Constitutional Court (Sentence of the Supreme Court 6/1988 of 21 January quoted before), for having interest for the public opinion, can be protected in the right to freely spread information (Constitutional Court´s sentence 154/1999 of 14 September).
Doubtless, that we are here before an information of general interest, at least for a sector of the public opinion. It is spread through a specialized newspaper. The plaintiff is a leading company in its sector. The information fits within the framework of a public debate (European Court of Human Rights´ sentence of 4 May 2017, Trantason vs Islandia).
c.- The third test is fixed upon the way in which are uttered and exposed these information or opinion. Though the information is true and though it is about aspects of public relevance, it will not attract the constitutional protection if the expressions or the way of defunding the news is unnecessarily offensive, humiliating or insulting (Spanish Constitutional Court´s sentence 41/2011 of 11 April). They are the denominated formal defamations. The phrases formally defaming and imbued with an unnecessary offensive charge for the fulfilment of the aims to which respond such freedoms, cannot find protecting in them (Spanish Supreme Court´s sentence 165/1987 or 107/1988). The freedom of expression does not protect the insult. This does not mean that some phrases or expressions have not to be tolerated, though they are formally defaming or are imbued of an unnecessary humiliating or contemptuous charge when from the whole of the text can be detected the predominant role of other aspects which grant a prevailing efficacy to the freedom of expression (Spanish Constitutional Court´s sentence 20/1990 of 15 February). Some excesses are admissible always that they appear as a way of bolstering the critic, though it may be exaggerated, abrupt or acid. The pure insults unconnected from the subject about which is the critic does not deserve the protection of the article 20 of the Spanish Constitution (Constitutional Court´s sentence 105/1990 of 6 June, 42/1995 of 13 February, 76/1995 of 22 May or 200/1998 of 14 October). In any case, it is discussable if a truthful information bur formally defaming may give rise to the crime of the article 207. The sharp terms of the article 208.3 of the Penal Code seem to exclude its penal relevance, without prejudice of the possible civil protection.”
8) Crime against the moral integrity:
Evidently there exists a relation between the crime against the moral integrity and the crimes of slander or defamation. However, the legal good is not the same, it is always difficult to distinguish where ends the integral morality which protects one from the honor which protects the other. In fact, the own article 173.4 CP, punishes the minor defamations, as we saw at the beginning.
The Penal Court´s sentence number 8/2023 says, with respect to the crime against the moral integrity: “In relation with this crime, the article 173.1 of the Penal Code punishes with punishments of imprisonment who inflicts into another person a degrading treatment, gravelly damaging it moral integrity. It is a crime integrated within the Title VII which has a title “Of the tortures and other crimes against the moral integrity” and which, in principle, protects as legal good the moral integrity distinguished from the honor, the own legal good of the Title.
The Sentence of the Second Chamber of the Supreme Court of 26 March 2019 said the following: “With respect to the crime against the moral integrity of the article 173.1 of the Spanish Penal Code, this Chamber has declared (Sentence 819/202 of 8 May) that this integrity protected has been identified with the idea of dignity or inviolability of the person and, taking as reference the Sentence from the Constitutional Court 120/1990 of 27 June, it comprehends its preservation not only against attacks aimed at damaging the body or spirit, but also against all class of intervention in these goods which lack the consent of its owner. In the context in which is the precept applicable, the moral integrity has been also identified with the psychic integrity, understood as the freedom of self-determination and acting according to the decided. Such crime of degrading treatment requires for its appreciation of the concurrence of a medial element (“to inflict in a person a degrading treatment”), and a result (“gravelly damaging its moral integrity”). By degrading treatment should be understood, according to the Spanish Supreme Court´s sentence of 29 September 1998, “that which may create in the victims feelings of terror, distress or inferiority susceptible of humiliating them, or breaching, in its case, its physical or moral resistance.
The typical action, then, consists in inflicting in another person a degrading treatment, in a way that is followed as result and in perfect causal relation a grave damage to the moral integrity. The core of the typical description is integrated by the expression “degrading treatment”, which -in certain doctrinal opinion- seems to presuppose certain permanence, or at least repetition, of the degrading behavior, for in another case there would not be “treatment” but simply attack; nevertheless, there is no obstacle, even it seems to be more adjusted to the typical prevision, for estimating committed the crime through only one behavior, always that in it is appreciated a enough damaging intensity for the human dignity for fitting it within the precept; in other words, only one act, if it is proven brutal, cruel or humiliating may be classified as degrading if it has enough intensity for this. Therefore, for degrading treatment should be understood in general terms any attempt against the dignity of the person. With respect to the result, it will be necessary a harm to the moral integrity, as legal good protected by the norm and which is shaped as autonomous value, independent of the right to the life, to the physical integrity, to the freedom or the honor, being its essence in the necessity of protecting the inviolability of the person. It is a residual type which gathers all the behaviors which suppose a grave aggression to the moral integrity. With regard to the committing mechanical, it will punish any degrading treatment which gravelly damages the moral integrity. The victim has to be subjected, intentionally, to a degrading situation of humiliation of indignity for the human person. The attempt against the moral integrity should be, in consequence, grave, being necessary to interpret the typical action taking into account all the concurring circumstances, for when the attempt is not grave, we may be before an infringement of less punitive entity.”
For later concluding that, when we are before facts which may constitute a crime against the moral integrity and slanders, they should be only punished as slanders, since we will be before a concurrence of norms of the article 8 CP. Concretely, this sentence says: “Well then, about this crime, the Spanish Supreme Court´s sentence 412/2009 of 23 May 2009 affirms that “this type of crime probably constitutes the highest exponent of the defective legislative technic employed in the title in which it is comprehended; and that the delimitation of the typical ambit is carried out through an indetermined description of the behavior “attempting against the moral integrity of a person) contemplated by a reference in the above article, already defined in vague terms on including any attempt against the moral integrity.”
Hence, the legislator has shaped the moral integrity as one own category and different from the honor susceptible of penal protection, but it results that this reality has two limits as diffuse that results complicated to establish when one starts and the other ends (can we in the estuary establish where ends the river and where begins the see?). Indeed, the own article 173.4º contains a point where are punished the defamations or unjust humiliations of minor character.
Well then, even pretending the legislator to establish a difference between both legal goods, the crime against the moral integrity is a residual type that, in this case, would be absorbed by the crime of slanders according to the rule of the article 8 of the CP, for it is evident that there is a close connection between the honor and the moral integrity, because all attack to the personal dignity supposes an offense to the honor and the moral integrity and because otherwise, in this case, it would suppose breaching the prohibition of the bis in idem.”
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com