Crimes against honour

Crimes against honour, how to act in Spain in a case of possible slander or libel?

Slander

Description of the offence

Slander consists of attributing a crime knowing it is false or doing it with reckless disregard for the truth. Constitutes the most serious offence against honour of those included in the Spanish Criminal Code.

The offence can be committed by different means: by word, in writing or by other visual or graphic means such as gestures, representations, drawings, caricatures, emblems, references, etc. as long as they are sufficiently precise and are directed at a specific person.

The attribution of the offence must have a certain degree of credibility, i.e. cases of accusations of impossible offences are unpunishable, e.g. when a bank worker attributes to another worker having stolen gold bars from the Bank of Spain.

On the other hand, when a subject claims that a crime has been committed without attributing it to anyone in particular, this could lead to a offence called simulation of a crime under Art. 457 of the Spanish Penal Code, but not to a crime of slander.

Companies cannot be victims of crime, since, although the Criminal Code establishes that they can commit crimes, they do not have the right to honour and dignity that is attributed to natural persons.

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Different scenarios

a) The mere allegation that someone is a thief or a swindler does not imply the imputation of the crime of slander because it lacks the necessary specificity, although it could imply a crime of libel.

b) When a different offence to the one actually committed by the subject is attributed, and the perpetrator is aware of this fact, there are several possibilities.

– If there is a qualitative difference between the offence attributed and the offence committed, i.e. different offences, e.g. robbery and serious injuries, it would be slander.
– If the difference is only qualitative, the issue is more complex. If a lesser offence than the one actually committed is attributed (e.g. a theft when it was in fact a robbery), there will be no libel offence. If, on the other hand, the crime attributed is more serious (following the previous case in reverse, when a robbery is attributed when in reality it was a theft), the judge could charge the author with slander.

Exceptio veritatis

As we have pointed out, the accusation must be false, which covers both cases of accusation of a non-existent crime and cases in which a real crime has been committed but is attributed to someone who has not committed it.

Art. 207 of the Spanish Criminal Code states that the person accused of a slander crime will be exempted from any punishment by proving the criminal fact (exceptio veritatis).

In the event that a subject imputes a fact believing it to be false but in reality it is true, we could be faced with an attempt to slander. It will never be a consummated offence, since if the fact is true, there can be no offence against honour.

On the other hand, slander will not be committed in cases where the only person who knows of the slander is the slandered person himself. The reason is that, if only the addressee of the falsehood is aware of it, his honour and self-esteem cannot be affected because he himself is aware of the falsehood.

Types

There are two types in Spain:

a) With publicity, either through the internet, social networks, written press or any other means. It is punishable by a 6 months to 2 years prison sentence or a 12 to 24 months a fine.

b) Without publicity: the penalty shall be a fine from 6 to 12 months.

Libel

These are all those actions or expressions that damage the honour of another person, deteriorating their reputation or damaging their selfesteem. The right to honour is protected by art. 18.1 of the Spanish Constitution and the offence of libel is included in art. 208 of the Spanish Penal Code.

It can be carried out verbally or in writing, by gestures, drawings, pictures, etc. It will only be considered a crime in cases of serious insults, except in cases of gender violence, in which minor insults will also be a crime.

In the same way as for slander, companies cannot be libelled. This is a right specific to individuals.

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Types of libel in the Spanish Criminal Code

The regulation is found in Art. 209 and 211:

a) With publicity through the press, radio, internet or any other media: six to fourteen months fine.

b) Without publicity: three to seven months fine.

Exceptio veritatis

The accused will be exempted from any criminal responsibility proving that the accusations against civil servants were true, according to Art. 210 of the Spanish Penal Code. This exception is due to the protection that the legislator wanted to offer to media professionals and citizens in general in order to protect the freedom of expression in relation to the activity of politicians and public workers

Common aspects of offences against honour

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Aggravating circumstance of price, reward or promise

Regulated in art. 213 of the Spanish Criminal Code, if the slander or libel is committed by price, promise or reward, the penalty will be prison or fine and special disqualification for public employment or profession, trade, industry, commerce or any other right for a period of six months to two years. However, the judge may not apply this penalty in the event that the guilty party retracts in accordance with the terms of art. 214 of the Spanish Penal Code.

Acknowledgement of the falsehood and retraction

Art. 214 of the Spanish Criminal Code recognises attenuating circumstances (imposition of a reduced penalty and the possibility of waiving the penalty of disqualification in the case of the aforementioned mitigating circumstance) for those who recognise the falsity before the judge and retract.

In these cases, if the offended party so requests, the judge shall impose the obligation to publish the testimony of the retraction through the same media that was used to commit the slander or libel.

Requirements for prosecuting offences against honour

The offences of slander and libel can only be prosecuted at the request of a party through a criminal complaint signed by the offended party or his or her legal representative (Art. 215.1 of the Criminal Code in Spain). However, they are automatically prosecuted when the offence is directed against a public official or authority regarding facts related to the performance of their duties.

If the offence is committed in court, it can only be prosecuted with the prior authorisation of the judge or court with jurisdiction over the case, Art. 215.2 of the Spanish Criminal Code.

Forgiveness of the offended party

According to articles 130.5 and 215.3 of the Criminal Code in Spain, criminal liability is extinguished with the pardon of the offended party or their legal representative, unless the offended party is a minor or a disabled person in need of special protection, in which case, the judge or court, after hearing the Public Prosecutor, may reject the pardon granted by the representatives of the minor or disabled person.

Prescription

Last but certainly not least, the statute of limitations for libel and slander is one year. In other words, once the time of commission of the offence has been determined, if the guilty party is not prosecuted within one year, the criminal action is barred.

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