What do we mean when we talk about crimes against honor?
As an introductory character, we have to point out that although the crimes of libel and slander have common aspects, they are different figures with significant singularities.
In order to simplify the answer as much as possible, we can affirm that it is a series of crimes that undermine the social reputation of the person. In fact, article 18.1 of our Constitution establishes that: “The right to honor, personal and family privacy and self-image is guaranteed.”
Indeed, the right to honor has an outstanding constitutional breadth and is usually projected in multiple cases before statements, manifestations, comments or opinions expressed in the media due to the great public projection they have and the possible transfer to the population of facts that the claimant he wants to protect and avoid negative publicity of his person in his public projection in society.
That’s right, in accordance with article 18.1 of our Magna Carta to which we have alluded above and Organic Law 1/1982, of May 5, on civil protection of the right to honor, personal and family privacy and one’s own image, These rights have the rank of fundamental rights, as has already been said. However, from the criminal point of view, we will limit ourselves only to the analysis of the crimes of libel and slander, which are crimes against honor included in the Penal Code.
At this time, the majority doctrine handles a normative-factual concept of honor, which implies that it starts from a normative concept but also takes into account external aspects, v.gr .: fame or reputation, but what is It is about ensuring and protecting respect for dignity in social contact. This is so because the assessment of the extent of the injury is only possible in the field of social contacts in which respect for personal dignity is sought. Therefore, we can affirm that honor has a social conditioning.
What is slander?
Slander, in accordance with the provisions of Article 205 of the Penal Code, is the imputation of a crime made with knowledge of its falsehood or reckless disregard for the truth.
That is, attributing to another person the commission of a crime for specific facts, but only if those facts are false. Therefore, slander is a malicious accusation, made with the intention of harming another. Now, if the defendant of slander proves that these facts are true, then he cannot be convicted.
As the Supreme Court Judgment 202/2018, of April 25, recalls:
«To integrate the crime of slander, generic accusations are not enough. It is essential that they be so specific and final that, in the main, they contain the elements required to define the attributed crime (SSTS of October 16, 1981 or November 17, 1987). That is why it is not slander, in principle, to call another person a “swindler” or a “thief”, if facts that are constitutive of such criminal figures are not specifically attributed to him, without prejudice to the fact that we may be facing insults. It could be slander in a certain context to claim someone is a “rapist” (STEDH of 7 November 2017, Egill Einarsson v. Iceland case). But other expressions such as “thief” or “corrupt” or “fraudster” do not always lead us to a specific criminal type and, therefore, are not enough by themselves to fill in the typicality of art. 205 CP… ».
What is libel?
In turn, article 208 of the Penal Code establishes that injury is the action or expression that injures the dignity of another person, undermining their fame or undermining their own esteem. Only insults that, due to their nature, effects and circumstances, are considered serious in the public opinion will be considered a crime… ».
The equality in terms of constitutional status of the right to honor and freedoms of expression and information, as well as the limitation clause of art. 20.4 Constitution, and the traditionally stubborn and iron criminal protection of honor, promptly prompted recourse to constitutional dogmatic instruments that made it possible to grant a channel for the exercise of freedom of expression and the right to information. Surely the one with the greatest impact was its configuration as an institutional guarantee for the formation of free public opinion. This vision has made it possible to place freedom of expression, if not in a higher hierarchical position, then at least in a place of constitutional privilege with respect to honor.
In this way, the first factor for analyzing the conflict is defined by the functionality of freedom of expression to contribute to the formation of free public communication as an expression of one of the basic pillars of the democratic system.
And, as far as value judgments are concerned, the margin of lawful exercise of freedom of expression is usually delimited by the use of insults or vexatious expressions unnecessary for the transmission of ideas or opinions.
As the Constitutional Court Sentence 93/2021, of May 10, 2021 recalls:
“Freedom of expression includes, together with the mere expression of value judgments, criticism of the conduct of others, even when it is unpleasant and may annoy, disturb or displease the person it is addressing, as this is required by pluralism, tolerance and the spirit of openness, without which there is no democratic society. In the broad framework that is granted to freedom of expression, according to our doctrine, “those manifestations that, although they affect the honor of others, are revealed as necessary for the presentation of ideas or opinions of public interest, are protected”.
What is the difference between slander and libel?
A leisurely reading of articles 205 and 208 of the Penal Code, paying attention to the behaviors that punish, reveals that the crime of slander will be committed when one person accuses another of committing a criminal act with knowledge of its falsehood or reckless disregard for the truth.
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At Guerra Bermúdez Abogados we have specialists in all types of crimes against honor thanks to our years of experience and our numerous cases won. Whether you are accused of a crime against honor or if you have suffered a crime of libel or slander, the experienced team of lawyers at our firm can offer you an adequate defense for the sake of justice.
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