Article 18 of the Spanish Consititution guarantees the right to honour, to personal and family privacy and to one's own image (el derecho al honor, a la intimidad personal y familiar y a la propia imagen). In a world of memes and 'fake news' in which an idea, image or video can spread across the world almost instantaneously, many people and companies run the risk of violating this right, even if accidentally.
So, what exactly is meant when we talk about the right to honour, to personal and family privacy and to one's own image, and what are the sanctions for those who violate this right? Let’s take a look.
What areas of life are protected by the right to honour, to personal and family privacy and to one's own image?
Some areas which are deemed particularly sacred are our homes (which may not be entered or searched without a court order) and our private communications (the secrecy of which must be guaranteed apart from in the case of a court order) and the use of information technology will be limited by the law if necessary to protect these rights.
Even if the person affected by the violation of this right has died, the right may be relied on by the spouse, descendants, ascendents and siblings of that person.
By way of clarification, Ley Orgánica 1/1982, de 5 de mayo, de protección civil del derecho al honor, a la intimidad personal y familiar y a la propia imagen outlines in Article 7 some specific actions which are deemed illegitimate in the eyes of the law:
- The placing in any location of listening or filming apparatus, optical devices or any other means capable of recording or reproducing the intimate life of persons.
- The use of listening devices, optical devices, or any other means of obtaining knowledge of the intimate life of persons or of private statements or letters not intended for the person making use of such means, as well as their recording, storage or reproduction.
- The disclosure of facts relating to the private life of a person or family that affect their reputation and good name, as well as the disclosure or publication of the contents of letters, memoirs or other personal writings of an intimate nature.
- The disclosure of private data of a person or family known through the professional or official activity of the discloser.
- The capture, reproduction or publication by photography, film, or any other process, of the image of a person in places or moments of their private life or outside of them (but bear in mind the actions deemed legitimate in the next section of this article).
- The use of the name, voice or image of a person for advertising, commercial or similar purposes.
- The imputation of facts or the expression of value judgements through actions or expressions that in any way injure the dignity of another person, undermining his or her reputation or damaging his or her self-esteem.
- The use of an offence, by the person convicted of that offence in a final criminal judgement, to achieve public notoriety or to obtain financial gain, or the dissemination of false information about the criminal acts, when this involves undermining the dignity of the victims.
And, in Article 8, some specific actions which are not deemed illegitimate are outlined:
- In general, actions authorised or agreed by the competent authority in accordance with the law shall not be considered unlawful intrusions, neither will they be when a relevant historical, scientific or cultural interest predominates.
- In particular, the right to one's own image shall not prevent:
- Its capture, reproduction or publication by any means when it concerns persons holding a public office or exercising a profession of notoriety or public standing and the image is captured during a public act or in places open to the public.
- The use of caricature of such persons, in accordance with social usage.
- Graphic reporting of a public event or occurrence when the image of a specific person appears as merely incidental.
The exceptions referred to in paragraphs a) and b) shall not apply in the case of authorities or persons performing functions which by their nature require the anonymity of the person performing them.
Sanctions for Violation of the Right to Honour
Ley Orgánica 1/1982 grants civil protection to honour in the face of any kind of intrusion, stating that the right cannot be waived, is inalienable and imprescriptible. However, the principal means of defending the right to honour is through criminal law. In the criminal realm, the infringement of the right to honour is considered in the Spanish Criminal Code. Offences against honour are divided into two main categories: calumnia and injuria.
- Calumnia: Calumnia involves alleging that someone has committed a crime knowing it to be false or with reckless disregard for the truth. Whoever commits calumnia can be sentenced to imprisonment for a term ranging from 6 months to 2 years, as well as fines (from 12 to 24 months, if the statement is disseminated or, otherwise, a fine of 6 to 12 months).
- Injuria: Injuria refers to expressions or statements that undermine the dignity of another person, without actually accusing him or her of a crime. These expressions must be considered sufficiently serious in the eyes of the law. A person who commits injuria is liable to a fine of 3 to 7 months (or up to 14 months for serious expressions that are disseminated).
It is important to bear in mind that in order to invoke criminal proceedings, the plaintiff must be the offended party. In addition, the natural or legal person who owns the media through which the calumnia or injuria was spread will be jointly and severally liable. Finally, if the defendant acknowledges that his or her statements were untrue and retracts them, he or she will receive a more lenient punishment. In such a case, the judge may order that the retraction be published in the same medium in which the original statement was made.
However, we mustn't forget about our freedom of expression, set out in article 20 of the Spanish Constitution. Sometimes there is a fine line between our right to honour and our freedom to communicate or receive truthful information. For example, in 2021 the Audiencia de Girona stated that a woman who had criticised her employer on social media after being fired was to be acquitted of the charges of injuria against her because she had simply been describing the situation as she had lived and perceived it.
The right to honour in Spain constitutes a fundamental element of human dignity and is protected under both civil and criminal law. Penalties for infringing this right can include damages, imprisonment, fines and/or public retractions, depending on the seriousness of the offence. It is important that individuals are aware of their responsibilities regarding defamation and libel, and that, in a democratic society, the balance between one person’s right to honour and and another person’s freedom of expression is respected.
Do you feel that your right to honour, privacy and own image has been violated? Contact one of our lawyers to find out how we could help you: