REGARDING THE TWEETS CELEBRATING THE DEATH OF BULLFIGHTER VÍCTOR BARRIO
“If liberty means anything at all, it means the right to tell people what they do not want to hear.” (George Orwell)
The tragic death of 29-year-old Segovian bullfighter Víctor Barrio on July 9th in the Teruel Bullring has sparked all sorts of reactions on social media, generating not only messages of condolence to the bullfighter and his family, but also celebrations of his death and insults directed at him by some supporters of the abolition of bullfighting.
In response to this situation, the Fighting Bull Foundation has compiled at least 50 offensive tweets against the deceased bullfighter and has announced that it will take legal action against the authors of these attacks, based on the provisions of Article 208 and related articles of the Penal Code, which regulate the crime of slander.
And the debate is open: can people who defend EQUALITY AND ANIMAL PROTECTION (supporters of the abolition of bullfighting) express themselves through this type of message??.
The legal answer is not simple, and must be analyzed on a case-by-case basis (not all messages published in this regard are unlawful), but it seems that, according to current constitutional doctrine and jurisprudence, these messages would not be protected by freedom of expression and would constitute the crime of defamation PROVIDED THAT they contain insulting, outrageous, or offensive expressions "unnecessary" for the issuance of the message and unrelated to the ideas and opinions that are INTENDED TO BE EXPLAINED.
In other words, FREEDOM OF EXPRESSION YES, BUT WITH THE LIMIT OF THE “RIGHT TO INSULT”.
Thus, according to the provisions of Article 208 of the Penal Code, the crime of slander any action or expression that injures the dignity or fame of a person, damaging their reputation or attacking their self-esteem (it constitutes a crime against honor as a manifestation of personal dignity) which may consist of formulating vulgar expressions of devaluation, attributing ulterior or bad intentions, giving partial information to form a mistaken idea of another, despising ideas or behaviors of others, making denigrating comparisons, offensive expressions, mocking or ridiculing someone, etc.
With the recent reform of the Penal Code now in force, only insults that, by their nature, effects, and circumstances, are considered SERIOUS (the minor offense category being eliminated from the Code). The fine imposed for such offenses will depend on whether they were made publicly (the penalty ranges from 6 to 14 months), that is, when disseminated through print, broadcasting, or any other means of similar effectiveness (television, internet), or privately (the penalty ranges from 3 to 7 months). In cases where the insult was made publicly, the individual or legal entity owning the media outlet (in the case of the internet, joint and several liability would extend to the owner of the server on which the offensive information was published) through which the insult was disseminated will also be jointly and severally liable with the offender.
In addition to the fine, the person responsible for the defamation offense is obligated to repair the damage caused through financial compensation to the offended party, known as "civil liability," and by publishing the judgment of conviction against the person who uttered the defamation. The judge or court will decide how and when this judgment should be published.
This type of offense, when committed between private individuals (falling within the private sphere), requires a criminal complaint (a mere report is insufficient except when the offenses or slander are directed against a public official regarding matters related to the exercise of their duties). Before filing the complaint, a conciliation hearing between the parties must have taken place or at least been attempted (Articles 278 and 804 of the Criminal Procedure Law). Otherwise, the complaint will not be admitted unless it is accompanied by certification of the required conciliation hearing.
Finally, if the accused of defamation admits to the judicial authority that the accusations are false or untrue and retracts them, showing remorse, the Judge or Court will impose the next lower fine. Obtaining forgiveness from the offended party or their legal representative, as applicable, would extinguish the criminal proceedings.
It is certainly true that every individual has the right to freedom of expression, and that attempting to limit or suppress it is simply an infringement of a fundamental right enshrined in Article 19 of the Universal Declaration of Human Rights. The right to express opinions cannot be questioned, and this fundamental right does not consist solely of expressing thoughts and ideas, but also includes criticism of others' conduct (even criticism that is annoying, harsh, or hurtful and may offend the person against whom it is directed), as pluralism, tolerance, and an open-minded spirit require, without which a democratic society cannot exist. However, what freedom of expression does not permit, according to our constitutional doctrine, is the use of derogatory terms used for the purpose of belittling.
Consequently, when conflicts of this type arise (between the protection of the right to honor and the right to freedom of expression), it will be necessary to carry out a balancing test between them, in which all the circumstances of the specific case must be assessed, and the following must be analyzed:
– the content of the information,
– the greater or lesser intensity of the phrases,
– their humorous, biting or sarcastic tone,
– the fact that it affects a person holding a public office,
– whether the injury has affected the authority of the injured party,
– the purpose of political criticism,
– the existence or non-existence of “animus injuriandi” (specific intent to offend and to belittle),
– the degree of intensity of the injury to the honor and
– the context in which they are made.
Only after analyzing these circumstances in each specific case and verifying the existence of gratuitous insulting expressions, will the Judge be able to classify an opinion as constituting a crime of slander.
Olga García
Civil/Criminal Area
Àmbit Assesor
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A Àmbit Assessor, SL has 40 years dedicated to the tax, comptable and labor consultancy of the Pime.
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