Defamation and non-pecuniary damage lawsuit

In the Internet age, where access to and dissemination of information is very easy, defamation can have a far-reaching negative impact on the reputation and personal rights of the victim.

Undoubtedly, defamation has important consequences for the reputation and the right to honour of the person who suffers such an attack. This is why it is important to know the legal treatment of defamation and how the defamation and moral damages lawsuit is handled.

What is defamation and how does it affect a person's reputation?

As a result of the development of social media, the boundaries of the right to freedom of expression and the right to honour are increasingly blurred, making it difficult to define what defaming a person is. However, the Constitutional Court has delimited the limits of freedom of expression and the right to honour, requiring that the conduct susceptible of being defamatory meets certain requirements:

• Publicity: the defamatory information must be disseminated by third parties orally, in writing or through digital media. Moreover, it is necessary to take into account that defamation can occur in both the public and private sphere.
• Falsehood: defamatory information must be false. In this sense, personal opinions or justified criticism do not constitute defamation.
• Damage to the victim's reputation: the defamatory information must be sufficiently serious to cause damage to the reputation of the victim of the defamatory conduct. Defamation usually takes the form of social disrepute, loss of job opportunities or emotional damage.

What is non-pecuniary damage?

Moral damage refers to the impairment of a person's moral, emotional or psychological integrity. Unlike defamation, moral damage is not necessarily based on the dissemination of false information, but on the negative impact that the dissemination of this type of information has on the person affected.

In this sense, it must be taken into account that, in order for a conduct to constitute defamation, it is necessary that there is damage to the reputation of the victim, which can manifest itself in the form of emotional affectation.

When is it possible to sue for defamation and moral damages?

It is essential to know when a defamation and moral damages claim can be brought. In order to bring a defamation claim, the alleged victim must prove that the following factors are present:

• Existence of a harmful or defamatory statement: it is necessary for the victim to prove that a false or harmful statement has been made that negatively affects the reputation or honour of the person concerned.
• Identification of the defamer: the alleged victim of defamation must identify the perpetrator, i.e. the person who has made a defamatory or harmful statement.
• Damage suffered as a result of the defamatory statement: the alleged defamation victim will also have to prove that the defamatory statement has caused tangible damage. In this regard, the person affected will have to prove that the defamation has caused damage to his or her reputation or resulted in loss of employment opportunities or emotional harm.
• Causal link: proving the causal link is perhaps the most important and difficult part to prove. Thus, the person affected by the defamation will have to prove that the damage suffered is a direct consequence of the defamatory statements made by the defamer.

It is important to bear in mind the time limit for the victim to bring a defamation claim: one year from the time the person affected became aware of the defamation.

Defamation in the Penal Code

Defamation is not regulated as such in the Spanish Penal Code. Thus, it is the offences of libel and slander that regulate defamation, both included in Title XI of the Spanish Penal Code.

• The crime of slander: regulated in Article 205 of the Penal Code, the crime of slander consists of the imputation of a crime to a person, knowing the falsity of this fact or with disregard for the truth. This means that the perpetrator of this offence must impute to the victim the commission of a criminal act in the knowledge of its falsity.
• Offence of insult: regulated in article 208 of the Criminal Code, the offence of insult entails the violation of the dignity of a person, undermining his or her reputation and attacking his or her self-esteem. In this case, only those insults that are of a serious nature will constitute an offence.

Both offences are included in the Spanish Criminal Code in order to protect the right to honour enshrined in Article 18 of the Spanish Constitution. However, if the truthfulness of the accusations is proven, the person accused of libel or slander will be exempt from criminal liability.

In both cases, the victim may file a defamation complaint with the corresponding Court of Instruction, as well as with the State Security Forces and Corps, and the assistance of a lawyer and solicitor is required.

In short, defamation can constitute a crime and, whether you are the one who receives a defamation complaint or the one who has been the victim of this conduct, the best thing to do is to contact our lawyers specialised in crimes against honour.