Have you ever lost clients because other professionals speak bad about your work or invent stories about alleged criminal behaviour? Have you read anything in a newspaper or in social media about you which is not true? Have you ever been insulted in public or heard someone “spreading a hoax” about you?
Unfortunately, this is a common situation that we can find ourselves in, especially at this time with an eager use of media. Nowadays, newspapers look for “easy” news to call everyone’s attention, arguing that freedom of expression prevails over the right to have a good reputation.
If you have been in a similar situation and you want to do something about it, claiming damages caused in your social, personal or professional life, you should know that the law protects you and gives you tools to defend your rights.
The most common crimes against the reputation are “Slanders” and “Injuries”, defined in the Spanish Penal Code, articles 205 to 210.
SLANDER: is defined as the “accusation of a crime knowing the false nature of the source or with reckless disregard for the truth”(Article 205).
The law punishes the persons who commit this offense with prison from 6 months to 2 years. Likewise, the law imposes a fine from 12 to 24 months if the slander is made using publicity. In other cases, the fine will be from 6 to 12 months.
In these cases, the person accused of slander can only be acquitted if they proof the truthfulness of the alleged offense. In other words, if you’re accused of being a thief and, effectively there is a sentence that condemns you, the one who accuses you of the crime cannot be punished, since what the says is true.
INSULT: Is defined as an “action or expression that damages the dignity of another person, undermining their reputation or undermining their self-esteem” (Article 208).
This act is considered an offence, however, shall be deemed a crime ones that, by their nature, effects and circumstances, are labelled as ‘serious’.
Indeed, injuries based on allegations of facts shall not be considered serious, unless they are committed with knowledge that the source if false or with reckless disregard for the truth.
Offended people can protect their reputation from being damaged by others by filing a criminal complaint claiming compensation for damages.
As a result, these kinds of crimes can only be prosecuted by initiation of the offended party. But before anyone can file a complaint you must first procure a prior step: A request for conciliation. Not doing so will cause the inadmissibility of the complaint.
The big question in these cases is how can immaterial damages be measured? How do we value honour, reputation or nuisance? This can be the most daring aspect once you succeed in proving the crime of slander or insult.
Despite the judge’s freedom to decide the final verdict, the Organic Law 1/1982 on the “Civil protection of honor, Intimacy ant the Image” establishes some criteria for the damage compensation:
1. Circumstances of the case.
2. The seriousness of the insult.
3. The manner in which the offense was committed.
Additionally, in order to fix the terms and the scope of the liability arising from the crime, article 120 of the Criminal Law Code, imposes the legal duty for judges to justify the judicial decisions, so that the courts must specify the compensation required, confirmed by the Supreme Court case-law. Likewise, the Constitutional Court regarding civil liability, imposes on Judges and Courts the requirement to give reasons for compensation amounts, specifying, the grounds on which they are based.
Even so, our high courts recognize the sometimes insurmountable difficulties in explaining compensation for immaterial damage, which is hardly subject to pre-established rules. Moreover, compensation will depend on each case.
After all the above, we do not want anyone to have to endure damage to their honor or image, but if for any reason this happens, it will be necessary to consult a lawyer who can study the facts, the seriousness, and the consequences of these alleged criminal acts in depth and advise you accordingly in the best way.
Maria Dolores Garcia Santos