Defamation remains a criminal offence in Spain (punishable with imprisonment).
The Spanish Criminal Code includes two general types of offences against honour: slander (Art. 205) and defamation (Art. 208).
Slander (calumnia) is defined as “accusing another person of a felony while knowing it is false or recklessly disregarding the truth”. It is generally punished with a of six to 12 months. However, when committed by means of the media (print and broadcasting) or other “similarly effective means”, it is punished with a fine of 12 to 24 months or imprisonment for up to two years.
Defamation (injuria) is defined as any accusation, expression, or action that “harms the dignity of another person, detracting from his reputation or attacking his self-esteem”. Defamation is only considered a crime if “by its nature, effect, or circumstances is considered serious by the public at large”. In the case of an assertion of fact, the offender must also know the statement to be false or have acted with reckless disregard for the truth. Defamation is generally punished with a fine of three to seven months. However, if the defamation is committed through the media, the potential punishment increases to a fine of six to 14 months.
In certain cases (e.g. if defamation was committed for payment), the offender may be barred from certain rights, such as holding public office or practicing a particular profession (Art. 213, in accordance with Arts. 42-45) for six months to two years.
Finally, Art. 620 of the Criminal Code provides that defamatory statements that do not otherwise constitute a felony are considered a misdemeanour (falta) andpunishable by a fine of 10 to 20 days.
Criminal Defamation of Public Officials
Criminal Defamation of the Head of State
Provisions on the books.
Offence toward the monarch and the royal family (lèse-majesté) remains a criminal offence in Spain under the Spanish Criminal Code.
Slander or defamation directed “against the King or any of his ancestors or descendents, the Queen Consort or the Queen’s Consort, the Regent or any member of the Regency, or the Heir to the Throne” is a criminal offence under Art. 490, par. 3. When related to the exercise of the victim’s royal duties, the punishment is a fine of six to 12 months. If the act is considered “serious”, the punishment is imprisonment of six months to two years. Any other act of slander or defamation against a royal is punishable by a fine of four to 20 months (Art. 491, par. 1).
Additionally, the misuse of a royal’s image in a way that “may damage the prestige of the Crown” is a criminal offence under Art. 491, par. 2. The punishment is a fine of six months to two years.
Criminal Defamation of the State and its Symbols
Provisions on the books.
Art. 543 of the Spanish Criminal Code prohibits “[v]erbal or written offences or outrages … against Spain, its Autonomous Communities or the symbols or emblems thereof”. The punishment is a fine of seven to 12 months.
Further, defamation of Parliament (or the legislature of an autonomous community) or its laws, is a criminal offence under Art. 496. The punishment is a fine of 12 to 18 months. Under Art. 504, the same provisions apply to serious slander of defamation directed at the national government, the General Council of the Judiciary, the Constitutional and Supreme Courts (national and those of an autonomous community), the armed forces, security forces etc.
Criminal Defamation of Foreign States and Symbols
Criminal Defamation of the Deceased
Provisions on the books.
Offending the feelings of members of religious groups or publicly disparaging their dogmas, beliefs, rites, or ceremonies is a criminal offence under Art. 525 of the Spanish Criminal Code. The punishment is a fine of eight to 12 months. Insult against non-religious persons is also included under these article.
Additionally, Art. 524 prohibits “profane acts” offensive to religious feeling that are performed in a religious setting. The punishment is a fine of 12 to 24 months or six months to one year in prison.
Other Relevant Criminal Offences
Offence to victims of terrorism
Art. 578 of the Spanish Criminal Code prohibits “acts that involve discredit, disdain or humiliation of the victims of terrorist offences or their relatives”. The punishment is imprisonment from one to two years.
Art. 594 prohibits sending false news that is “aimed at damaging the prestige of the State or the interests of the Nation” in a time of war. The punishment is imprisonment from six months to two years.
Statistics on Application
- There were 25 criminal convictions for slander
- There were 73 criminal convictions for defamation
- Additional data suggest that all criminal punishments were in the form of fines.
IPI was directed to these tables by the National Statistics Institute in response to a request for detailed criminal statistics.
The relevant wrongs foreseen by the law are:
“the dissemination of facts related to the private life of an individual or family that may affect the reputation or good name of those concerned” (Art. 7.3); and
“the dissemination of expressions or facts concerning a person when these defame him or cause him to become less worthy in the eyes of others” (Art. 7.7)
There are no caps on non-pecuniary damages for defamation in Spanish law.
The Law on Civil Protection of the Right to Honour provides that the court may consider “the adoption of all necessary measures to put an end to the illegitimate transmission”. These include an order to desist, a court-ordered right of reply, publication of the court’s judgment and an award of damages (Art. 9.2). In addition to any economic damages, plaintiffs also have recourse to “moral damages” (daño moral), which the court may determine “based on the circumstances of the case and the seriousness of the harm caused”, including the reach of the media through which the transmission occurred (Art. 9.3).
The Law on Civil Protection of the Right to Honour offers few explicit defences. Statements are not liable if they contain an overriding “historical, scientific or cultural interest” (Art. 8.1). The law also states that there can be no liability when the publication or other transmission was officially authorised.
Arts. 212 and 120 of the Spanish Criminal Code provide that when slander or insult is committed through the media, only the respective owners of the media may be held civilly liable.
Media Cases and Case Law
Notable case law
Since its establishment in 1980, the Spanish Constitutional Court (Tribunal Constitucional) has established several standards affecting defamation jurisprudence. Some of the most important include:
Distinction between fact and value
The Court has clearly distinguished between the right to communicate “newsworthy information” and the right to free expression”. In a 2003 case, the Court : “This distinction between thoughts, ideas, and opinions on the one hand, and informative communication on the other, has decisive importance at the moment of determining the legitimacy of the exercise of those liberties [expression and information], while facts are subject to proof, opinions or value judgments, which are by nature abstract, do not lend themselves to a demonstration of exactitude, and that means that the person who exercises the right to free expression cannot be demanded to demonstrate proof or diligence relative to the assertion.”
Limits of free expression
Additionally, the Court has on various occasions that the right to free expression also “includes the right to criticise the conduct of another person, even when such criticism is tasteless and may disturb or cause disquiet or disgust on the part of the person criticised”. However, the Court has consistently rejected any general right to insult and has generally allowed “tasteless” speech only insofar as public interest may be concerned. It has also consistently applied a test of proportionality. In a , the Court affirmed no constitutional protection for expressions that are “formally insulting or that lack public interest and, therefore, are unnecessary to the essence of the thought, idea, or opinion expressed”. It continued: “The use of formally insulting terms in any context, whether for journalistic work or to express an opinion that another person or his conduct may appear to deserve, consists of an unjustified harm to the dignity of individuals.” In a , the Court repeated that “the right to free expression does not permit that criticism be accompanied by formally insulting expressions or expression that refer to issues whose revelation or divulgance is not necessary to make use of the right to social participation, regardless of the public position subject to criticism or opinion or adverse revelation”.
Publication of true information; defence of good faith
Summarising its view on the right to free information, the Court stated in a that information is protected as long as it “refers to facts with public relevance, in the sense of being newsworthy, and that it is true”. The Court added: “The requirement of truth should be understood as fulfilled in those cases in which the [journalist] has conducted prior to the diffusion of the news an investigation into the supporting facts and that this investigation has been done with a diligence that can be demanded of a news professional.” Notably, the Court’s decision in this case was later upheld by the European Court of Human Rights in Polanco Torres and Movilla Polanco v. Spain, no. 34147/06 (2010).
The Court has firmly established that citizens have a legitimate interest in scrutinising the “conduct, image and opinions” of those who rule in their name, an interest in which the media plays a “vital role”. Summarising its view on the matter in a 2001 case, the Court stated that both information and criticism involving public figures must have “public relevance” and, in the case of criticism, that the form or terms used must not be “unnecessary” to making the particular point. The Court has noted that the term “public figure” may include both those who “exercise public office” or “are implicated in issues of public relevance”.
Recent examples of cases involving the media
In two separate cases in 2013 and 2014, the editor of the Lanzarote-based satirical blog El Agitador, Carlos Meca, was sentenced to pay approximately €38,000 over vignettes considered to have offended the honour of a former public prosecutor implicated in a municipal corruption affair. The images referred in particular to the prosecutor’s occupancy of a home determined by local authorities to be in violation of various rural housing regulations. In one case, a judge condemned Meca to pay a criminal fine of €8,000, plus €15,000 in damages and legal costs to the prosecutor. In the other, a civil court similarly ordered Meca to compensate the prosecutor €15,000 for non-pecuniary damage caused by one of the vignettes.
In 2010, the Provincial Court of Seville two editors of the Andalucía version of the daily El Mundo, Francisco Rosell and Javier Caraballo, of defaming the former president of the Andalusian government, Manuel Chaves, and several other members of the Andalusian Socialist party. The accusation arose after the paper, in 2001, printed allegations that the officials had ordered a spying operation on the presidents of Sevillan banks. The judge in the case, confirming a lower court ruling in 2007, reportedly ruled that although the reported espionage had never conclusively been proven true, the paper had acted with “sufficient diligence so as to fulfil the constitutional requirement of truth”. The judge noted that if newspapers were only allowed to publish information “proven scientifically true”, this would lead to a “paralysis of the flow of information vital to a democratic society”. In 2011, Chaves that he would not appeal to the Constitutional Court.
In 2008, journalist and commentator Federico Jiménez Losantos was convicted of having criminally insulted the then-mayor of Madrid, Alberto Ruiz-Gallardón, and ordered to pay a fine of €36,000. A member of the Spanish People’s Party, Ruiz-Gallardón had publicly in 2006 that, among other things, the party should avoid becoming mired in debate over its actions following the March 11, 2004 Madrid train bombings and instead focus on evaluating subsequent mistakes it made. The party, which had been in power at the time of the bombings, was widely criticised for incorrectly blaming the Basque separatist group ETA for the attacks, allegedly in order to strengthen its position in a national parliamentary election held just days later. The party ultimately suffered large losses at the 2004 polls. In response, Losantos stated in a television programme that Ruiz-Gallardón “did not care that 200 people died as long as he came to power” and called the mayor a “traitor”, “deceitful”, and a “lackey for the opposition”, comments he repeated on several other occasions. Ruiz-Gallardón filed criminal charges and the judge in the case reportedly ruled that Losantos “had put words into Ruiz-Gallardón’s mouth that he did not say” and thus “did not transmit true facts” and was not protected by freedom of expression. According to , the judge also found that Losantos had sought to harm the “image and dignity of (Ruiz-Gallardón) in a gratuitous and unnecessary way and to discredit him publicly in his condition as mayor and member of the People’s Party”. In 2009, the Madrid Provincial Court upheld the sentence, agreeing with the lower-court judge that Losantos’ choice of words had been disproportionate to his aim. “The right to free expression … does not protect unjustified and unnecessary offence or insult,” it reportedly .
In 2007, El Mundo journalists Eduardo Inda and Miguel Ángel Ruiz were convicted of criminally defaming the former mayor of the city of Mahón on the island of Menorca. The journalists reportedly were each sentenced pay a fine of 18 months at a rate of €180 per month, in addition to damages in the amount of €9,000. The conviction rated to a series of articles suggesting corruption on the part of the mayor, Borja Carreras. In 2012, Inda, together with Esteban Urreiztieta, was the of another criminal defamation complaint, this time from Catalonian politician Jordi Pujol, over an based on a draft police report that alleged that the Pujol family had stashed €137 million in a secret Swiss bank account. A judge reportedly the case because the journalists had acted on information coming from trustworthy sources and without the intent to harm. It was later that Pujol planned to appeal. However, in July 2014, he admitted to having committed tax fraud by hiding money in foreign accounts.
In 2009, prosecutors in Catalonia charged two journalists with criminally defaming Xavier Vilaró, chief of the Barcelona police (Guardia Urbana). The charges related to a 2008 incident in which Vilaró was wounded during a public celebration of Spain’s victory in the European [football] Championships. Vilaró later claimed that he had been wounded by a rubber bullet shot by a member of the Catalonian police (Mossos d’Esquadra). The newspaper El Mundo and the website Vilaweb both published articles questioning Vilaró’s version of events. Prosecutors requested a year in prison for Fernando García, author of the El Mundo article, and requested damages of €150,000 to be paid to Vilaró. Prosecutors a fine of €15,000 against Vicent Partal, editor of Vilaweb. In March 2011, a Barcelona court both García and Partal.
In February 2014, the director of Spain’s Civil Guard, Arsenio Fernández de Mesa, criminal defamation and slander charges, apparently in relation to claims that the Civil Guard stationed in the Spanish enclave of Ceuta in northern Morocco had mistreated would-be asylum seekers. The threat came after reports that at least 11 Western Saharan migrants had died attempting to reach Ceuta. Fernández de Mesa vigorously defended the Civil Guard’s actions and in response to the allegations stated: “It’s not fair and there are certain lines that cannot be crossed … the Civil Guard cannot be accused of any type of crime.”
In 2012, a local Catalan magazine, Cafè amb Llet, was ordered to pay €10,000 in damages to Josep Maria Via, a businessman involved in the healthcare industry and an advisor to the Catalonian government, after publishing a video (titled “The Biggest Robbery in the History of Catalonia”) criticising an alleged lack of transparency in Catalonia’s publicly funded healthcare system. In the video, editor Marta Sibina challenged an article Via had written in the Spanish daily El Pais, in which he argued that governments should hand over management of publicly funded hospitals to private companies, citing the burden of bureaucracy. Noting that Via ran a private company that conducted studies for, in particular, public healthcare institutions, Sibina rhetorically stated that it might be better to send the money “to the Cayman Islands and spare us the bureaucracy, [but] what you [Via] call bureaucracy is democracy, which is, among other things, the ability of the people to know how their money is being spent by people like you, by Bagó, by Manté, and so many others who have enriched themselves thanks to the money of the public healthcare system”[quotes taken from Spanish version of video]. The judge in the case reportedly ruled that the video report, particularly in light of the title, amounted to an unfounded allegation that public funds had been stolen and, by including Via’s name, had defamed him. The Catalonian Journalists Association reportedly said that the decision “did a terrible wrong to freedom of expression and the very important social work of small local media”. In February 2014, however, a provincial court overturned the lower court’s ruling. According to reports and a statement by the magazine’s lawyer, the judge ruled that the report only amounted to “sharp criticism” and constituted a contribution to democratic debate. The ruling permitted the magazine to re-upload the report.
In 2012, the Spanish Supreme Court an appeals court ruling and thereby reinstated a lower court judgment ordering radio journalist and commentator Federico Jiménez Losantos to pay €100,000 in damages for insult to José Antonio Zarzalejos, then-editor-in-chief of the newspaper Abc. Zarzalejos had originally asked for €600,000 in damages; the case was noted for resulting in one of the highest civil awards for defamation in recent years. Between February 2006 and November 2007, Losantos had used a series of invectives to refer to Zarzalejos, including “functional illiterate”, “grotesque thing”, “ignoramus”, “provincial intellectual”, “poor devil” and “traitor”. The Madrid appeals court had emphasised that the terms in question had to be seen in context as criticism of Abc’s editorial line, rather than a personal attack on Zarzalejos, and thus had to be tolerated even if it was “unpleasant”. The appeals court also noted that Zarzalejos had to accept that his right to honour was more limited given his public position as editor of a major newspaper. In its ruling, the Supreme Court agreed with the appeals court’s characterisation, but found that Losantos had employed “disproportionate” expressions that “provoked in readers a distorted view of the claimant”. The Court placed particular weight on the repetition and duration of the criticism, noting, “It is one thing to carry out a personal evaluation, no matter how unfavourable, of a particular conduct and quite another to utter repeatedly and constantly disconnected epithets”.
In 2007, a cartoonist and an editor working for the satirical magazine El Jueves were €3,000 each for offending then-Crown Prince Felipe and his wife, Letizia, for an image depicting the royal pair having sex. The prince is depicted as saying: “Do you realise if you get pregnant this will be the closest thing I’ve done to work in my whole life.” The judge in the case said Guillermo Torres and Manuel Fontdevila “had vilified the crown in the most gratuitous and unnecessary way”.
In 2008, the mayor of the small town of Puerto Real was fined €6,480 for calling the King “weak” and a “libertine”. During his court appearance, José Antonio Barroso of a “democratic defect” in that, in his view, it was not possible to talk about the King, his “illicit businesses” or his “fortune of unknown origin”. The court that the right to free expression did not include insulting the “ultimate nucleus of a person’s dignity” and that the terms used by Barroso were not necessary for the expression of his view.
In 2013, a court sentenced a former military colonel, Amadeo Martínez Inglés, to a fine of €6,480 for insulting King Juan Carlos I in article titled “Why don’t you shut up now?” in a commentary on the website Canarias-Semanal. The article referred to the king as “maximally corrupt” and guilty of genocide, and called him the latest in a line of “drunks, idiots and nymphomaniacs”. In its ruling, the court that it was “not necessary to vilify the King” in order to express rejection of the monarchy.
The European Court of Human Rights in 2011 that the conviction of a Basque politician, Arnaldo Otegi Mondragon, on lèse-majesté charges was a violation of freedom of expression. Speaking to the press in 2003 following a royal visit to the Basque region, Mondragon referred to the king as “he who protects torture and imposes his monarchical regime on our people through torture and violence”. Mondragon was later a suspended one-year prison sentence. Accepting that Mondragon’s language could be considered “provocative”, the Court noted that – especially in the case of a “public debate on general concern” – individuals may have recourse to “a degree of exaggeration, or even provocation”. Furthermore, although the Court acknowledged that a monarch may occupy a “unique institutional position”, it nevertheless held that “the fact that a King occupies a neutral position in public debate and acts as an arbitrator and a symbol of State unity should not shield him from all criticism in the exercise of his official duties or … in his capacity as representative of the State which he symbolises”.
Recent Legal Changes
No known relevant changes.
Legal Sources and Acknowledgements
Information on defamation laws in Europe was collected by the International Press Institute (IPI) in collaboration with the School of Public Policy’s Center for Media, Data and Society at Central European University in Budapest and their partners at the SHARE Foundation in Belgrade. (Read more about our partners here.)
The information contained in this database is for informational and advocacy purposes only. If you are a journalist facing a defamation claim, you should seek legal advice from a qualified attorney. However, if you are unable to find such an attorney, IPI may be able to assist you in doing so. Please contact us at ipi[at]freemedia.at.
Information on Spain was last updated in January 2015.