The reputation of an individual or a company can take years to build, and so it is a unjust reality that this can sometimes be torn down by just one malicious attack. If your character has been defamed or you have been slandered in Spain, this article is for you. This article will cover the meanings of defamation of character, the laws they correspond to and the legal options available to you.
The term includes:
comments affecting a person’s personal character, for example saying that they are corrupt, deceitful or a criminal
comments affecting a person’s work, for example saying that they are an incompetent lawyer
comments exposing a supposed financial situation for example saying that somebody is in debt
other insults or false accusations which lead to hate, mistrust or other negative consequences
There is a wide spectrum of seriousness of insult, consequence, and legal penalty applicable in these cases. In the Spanish criminal code, defamation of character is split into two types and definitions. These are injury (‘injuria’) and libel (‘calumnias’). Both are offenses against somebody’s dignity or reputation, but have subtle differences and are treated differently.
What does the Constitution say?
The Spanish Constitution sets out both the right to free speech and opinion, but also the right to dignity and privacy. This means that whilst Spanish citizens have the right to speak their mind, they cannot do this at the expense of somebody else’s reputation, especially if the information they share is false. The constitution specifically mentions that free speech has limits when the rights to dignity, privacy, self-image and protection of childhood are threatened.
Injury vs libel – what is the difference?
Injury
Injury is referred to in article 208 of the criminal code. It refers to an action or remark that injures the dignity of another person, damaging their reputation or self-esteem.
It is only considered a crime if they are considered to have a serious impact. Of course, this means that it can be quite subjective in some cases.
For example, injury caused by imputation of facts (insinuating guilt of something) is only considered serious when it has been done with deliberate knowledge of its falsehood. In other words, it is only convictable if there has been lying involved.
According to the criminal code, serious injury can be punished with a fine or imprisinment by way of substitution for non recovery of the financial penalty.
Libel
On the other hand, libel is referred to in article 205 of the criminal code.
It refers to imputing a crime knowing that it is false, or is a ‘reckless disregard for the truth’. This is considered more serious by the law and in some cases can be given prison time. Convictions can include fines during a period of between four and twenty-four months. Prison time varies from six months to two years.
In case of the accused person being able to prove that the crime they insinuated did in fact take place, all convictions will be lifted.
Therefore, libel is about the insinuation of a crime, whereas injury attacks the dignity of a person.
For example:
Exposing that somebody was in debt maliciously online would be injury
But implying that somebody had committed fraud would be libel
Or…
Claiming that someone was an incompetent doctor would be injury
But implying they had committed medical negligence would be libel
What legal options are there?
First, before pursuing legal matters you should try to pursue mediation outside of court. You should get in contact with the person or company who has defamed you and ask them to remove the insult. However, if this fails or if you feel the negotiation has not been fair, it can then progress. Ensure that you keep a copy of all documentation to then use in court.
Secondly, the timeframe to denounce defamation of character is within a year of when you realised it had occured.
If mediation fails, the Constitutional Tribunal has established a set of limits to define what is punishable – they have set a triple test to advise if you should proceed legally:
Test of truth – has the informant acted in due diligence in communicating the information?
Relevance test – is the material of interest for public opinion? Does it only affect private things or does it have public relevance? Just private things wouldn’t be in breach of Article 20 of the Constitution.
Test of proportionality – how bad is the defamation? Is it uncessarily offensive? This would then not be covered by the right to freedom of expression so would be considered slanderous/libelous.
If it passes this test, your lawyer can present the defamation case before the corresponding magistrate’s court. The key thing about defamation of character is that they must prove the false nature of the claims and the harm caused by them. The judge will judge the information given to them and decide the verdict for the person or company (such as a newspaper) accused.
As well as a fine or even prison time for the accused, you may be able to claim compensation for damages to your public image, or indeed compensation for mental health struggles as a result.
Gender violence.
In the event that the victim of these crimes is an ex-partner or partner or analogous relationship of affectivity, the articles of the Penal Code that refer to the crime of gender violence, which are different from those mentioned above, would apply.
DISCLAIMER: this information may not be up-to-date and cannot be considered official legal advice. For up-to-date legal information relevant to your case, please get in touch with our lawyers using the contact details below.
Piñera del Olmo
c/ Aribau 114, entlo (mezzanine) 2ª
08036 Barcelona
Phone: +34 93 514 39 97
Fax: +34 93 127 07 66
Email: rpinera@pineradelolmo.com