Limits on freedom of expression

Freedom of expression is one of the legal concepts that most social interest arouses, because of its abstract character and the value it represents. The fundamental rights collected in the Spanish Constitution were proclaimed along with the rest of the constitutional text in 1978. Since then, Spanish society has undergone numerous changes, which have meant an adaptation of the guardianship of these rights to the current legal reality. Its protection and concretion are essential in a rule of law. The SC doctrine profiles the limits of fundamental rights through a balancing. It is especially relevant the one made between the Freedom of expression and the Right to honor.

A) Limits on freedom of expression in a context of political criticism

The SC rules demonstrate how rights are balanced depending on the context. The SC judgement of 11 October 2017 updated the doctrine in a context of political criticism. In a television debate, a journalist directs the terms “chorizo” and “mangante” to the leader of the political party Podemos. This latter leads to the interposition of a demand for protection of the right to honor of the second against the first.

First, the SC analyses the difference between freedom of expression and freedom of information. While freedom of expression comprises the issuance of valuation judgments, freedom of information refers to the communication of objective data. On the other hand, the right to honor protects against attacks on personal reputation (CC Ruling 180/1999). The application of the deliberation technique implies the prevalent position of freedom of expression and freedom of information. Both are limited by the right to honor, opposed to the dissemination of expressions that objectively discredit a person. The SC and the ECHR affirm that the acidic and hurtful criticisms are admissible, although the insults are not covered. While “Style is part of communication as a form of expression”, the SC determines that in the present case they resorted to insults. Political leaders must tolerate a higher level of criticism, and freedoms of expression and information reach a maximum level when exercising by professionals. However, the SC rules that, in a context of political strife, insults are not covered by freedom of expression. It is for this reason that only partially considers the cassation appeal against the appeal sentence. Thus, it appreciates the illegitimate interference in the right to honor, reducing only the amount of compensation.

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B) Right to honour as a limiter of freedom of expression in a framework of political confrontation

On the other hand, the SC judgement of 8 November 2018 profiles jurisprudence in a context of political strife. In particular, the analysis focuses on the discrepancy of a group of voters in the municipality of Gaztelu regarding municipal management. The group of electors is sued by the mayor and two councillors for spreading a letter. According to the plaintiffs, it contained false accusations and offensive expressions that violated their right to honour. In the case of an appeal, one of the members of the group of Electors interposes an appeal. The unique motif of the appeal is the violation of the rights to freedom of expression and information. The CC rulings 216/2013 and 41/2011 determine that “Freedom of expression can be understood as preponderant in the face of information when the idea or critical opinion that is manifested is sustained or protected in the imputation of acts of criminal appearance”. Thus, the SC carries out a judgment of counterposition of the freedom of expression and the right to honor.

The SC is inspired by the ECHR sentence of March 2011, which states that “It is precisely when ideas offend, collide or disturb the established order, when freedom of expression is more valuable”. Based on the foregoing, the appeal considers that the criticisms were covered by freedom of expression. These are maintained in the sphere of political management, in a context of obvious strife, given the public relevance of defendants and plaintiffs.

C) Freedom of information and the right to honor. Canon of truthfulness

Finally, the SC’s decision of 12 January 2018 refers to the weighting of freedom of information and the right to honour. The SC overturn the sentence determining that the canon of veracity demanded by the Provincial Court is incorrect. It does not consider the nature of the facts denounced: the denunciation of sexual abuse to gymnasts by their coach.

The SC judgement 329/2012, of 17 May, declares that “The Commission of criminal acts, in order to be protected by the legitimate exercise of freedom of information, must fulfil the requirements of public relevance of the facts and veracity”. The SC showed its reticence against the extreme rigour in the exercise of evaluating the evidence carried out by the audience. It tightened the evidentiary rigour by denying any value to the declaration of the alleged victim, for being part of the process. The standard of proof is higher than that demanded in the criminal process to convict the accused of such crimes. In fact, in the latter, the victim’s statement may be considered enough incriminating evidence. To study the veracity, we must attend to the essence of the facts, but this cannot be equal to the proof of its effective realization. Crimes against sexual freedom often occur in clandestine places, making it difficult to attend other tests. Moreover, such a requirement of proof would lead to a deterrence of public denunciation of these conducts, essential to clarifying such crimes. The SC is aware of the impact the indictment of the “abuser” can generate when it has not been proven. Nevertheless, it maintains that it is necessary to create a favorable climate for a public complaint. It believes that the complaint is credible and that there is no hint that the alleged victims have acted in bad faith. Therefore, he chooses to protect them, by encouraging them to publicly denounce the facts.

SC: Supreme Court

CC:  Constitutional Court

ECHR: European Court of Human Rights