Article 11 - Freedom of expression and information
Key facts of the case:
The claimant, a CEO at the tv channel Antena 3, lodged an appeal against the digital newspaper Extraconfidencial to ask protection of his right to honour (“derecho al honor”, guaranteed by Art. 18.1 of the Constitution and by the following case law: decisions 809/2013 and 146/2013 taken by the same Court, as well as to different judgments given by the Constitutional Court). According to the claimant, an article published by the newspaper informed about alleged indications that the claimant gave to the director of the communications’ department of the same tv channel, with the purpose of putting pressure on the media not to damage the public image of the claimant. The claimant considered that the publication of such information represented an illegitimate invasion of his privacy, and he asked the first instance court for financial compensation, and publication of the decision in the national newspapers. While the first instance decision partially condemned the defendant, the second instance court reversed the decision, as it considered that all the expressions used in the article fell into the exercise of freedom of expression and information, thus this cannot be considered insulting or outrageous in relation to the right to honour of the claimant.
Outcome of the case:
The Supreme Court affirmed that in some cases the right to honour can be limited by the guarantee of the freedom of expression and information. Moreover, in light of the national jurisprudence on the matter, the Court explained that the conflict between the two rights has to be solved by technics of constitutional ponderation, taking into consideration the concrete circumstances of the case. This technic requires to assess firstly the importance in abstract of the different rights entering into conflict. In this perspective, the right to freedom of information prevails over the right to privacy and to protection of one’s image. This prevalence derives from the consideration that right to freedom of information is essential to guaranteeing the existence of a free public opinion and thus the political multi-party system of a democratic State.
Following this exercise on the constitutional ponderation, the Court also deemed it necessary to assess the specific relevance of the different rights in conflict. In light of this, the Court provided a set of criteria (also based on national jurisprudence) to take into consideration in this second concrete evaluation: to assess whether the information has public relevance or public interest or whether it relates to persons with a public charge, or a famous profession, or with public projection. In such cases, the Court considered the right to freedom of information to prevail when right to information implies the transmission of information in detriment of a person, it can prevail on the right to honour, if it complies with the requisite of veracity. This requisite has to be understood as the result of a reasonable diligence by the informer to corroborate the information, according to the proper professional standards and the circumstances of the case. The transmission of the information or an article cannot exceed the purpose of the information. This means that the right to honour has to prevail any time the information contains expressions or sentences that are offensive or outrageous, without any relation to the ideas and opinions expressed. Following this reasoning, the Court dismissed the appeal lodged by the claimant and confirmed the second instance decision. According to the criteria explained, the Court concluded that the right to information and the freedom of expression have to prevail in the concrete case, and that the right to honour had not been infringed. The Court estimated that the personal evaluations contained in the incriminating article cannot be considered as outrageous or insulting or degrading, because they are strictly connected to the information transmitted, that is to make the public acquainted with certain economic difficulties of the tv channel, and the CEO’s responsibility, as a public person, in this regard.
The constitutional protection of freedom of information and expression reaches the maximum level when it is exercised by information professionals through the institutionalised mean for the formation of public opinion, that is the press, understood in its wider meaning (Sentence of the Constitutional Court 105/1990 of 6 June, and 29/2009 of 26 January). This jurisprudential criterion is nowadays expressly admitted by Article 11 of the Charter which, in recognising the right to expression and to receiving and communicating information, makes a specific reference to the respect of the freedom and pluralism of media.
La protección constitucional de las libertades de información y de expresión alcanza un máximo nivel cuando la libertad es ejercitada por los profesionales de la información mediante el vehículo institucionalizado de formación de la opinión pública que es la prensa, entendida en su más amplia acepción ( SSTC 105/1990, de 6 de junio , y 29/2009, de 26 de enero ). Este criterio jurisprudencial es hoy admitido expresamente por el art. 11 CDFUE, el cual, al reconocer los derechos a la libertad de expresión y a recibir y comunicar información, hace una referencia específica al respeto a la libertad de los medios de comunicación y su pluralismo.