Guide to claim the right to honor

 derecho al honor

This guide provides a brief review the procedure for claiming the right to honor

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Digitization of society has made claim the right to honor is a recurrent operation. Social networks and electronic media have many advantages, but they have also led to new forms of intrusion right to honor.

its users, protected by anonymity, They behave in ways that no network would use in the real world. It is in this framework that attacks on the honor and personal privacy have found a new breeding ground.

Why these claims is more topical than ever. And so we decided to analyze in detail how you can thrive once claim on the right to honor.

What is the right to honor?

The right to honor is a constitutional right, protected by article 18 our fundamental text. Foreseeing the current situation, constitutionalists and noted in item 4 of this article that the law should limit the use of computer, in order to protect this right and personal and family privacy of citizens.

So it can not be said that the increase in tension in this matter is a novel issue for our lawgiver.

The concept of honor, at this venue, It is related to the reputation of individuals. However it can not offer a specific and unambiguous definition of this term as, as it pointed out by the Constitutional Court, adequate protection depends on to be interpreted in accordance with the "rules, current values ​​and social ideas at all times ".

Therefore, It can be understood as a violation of the honor all that manifestation which pursues disrepute, the unworthiness and even humiliation.

Hence this right be traditionally linked to self-image and even personal and family privacy.

Why is it so complex protection of the right to honor

The biggest problem in ensuring the protection of the right to honor has to do with his collision with other fundamental rights. So, It seems peaceful society accept that points to an offender and be called by name.

In fact, Penal Code itself excludes the criminal responsibility of, after imputing a crime someone, test the veracity of his allegations.

However, It does not seem so peaceful accept the false accusation of criminal or other dishonest behavior.

In the same way, there are social situations where it is permissible to use strong words against a person. For example, It does not seem so acceptable a disqualification in the classroom of a school and a heated political debate or within a manifestation.

But, and general, We do not accept the insult, disqualification or injury, especially when unjustified.

Why this double standard? Precisely because of the intimate game between the right to honor, to privacy and self-image with other constitutional rights, mainly:

  • Freedom of expression. We are all masters of expressing our opinions. But the problem arises when the statement is not an opinion, until a improperio. Especially in cases where our demonstration may cause damage to the receiver.
  • Right to information. In the same way, everyone is entitled to receive truthful information. And the truth may involve the knowledge of really embarrassing elements for the subject of the information.

borderline cases in the protection of the right to honor, privacy and self-image

Listed below are the main areas in which it has been violated the derecho al honor. They are not the only ones, but they allow perfectly illustrate the collision of fundamental rights of which we speak.

Also, the reader will empathize with the participants, so our speech will no longer seem abstract. The right to honor is, certainly, a guarantee the dignity of the person, worthy of greater respect and protection.

Rose tabloid press

If a sector has to talk to lawyers about the rights to honor, to privacy and self-image is, definitely, pink press. The tabloid press is characterized by track life more or less popular characters.

In their eagerness to get headlines, exclusive, reporters from the tabloids and paparazzi They come to invade the most intimate aspects of their objectives. Which no doubt collides with these rights.

Also, the most successful TV formats (We will save us mention, but they are public knowledge) They derive their revenues from spreading jokes and invite players in this sector that have intimacies of their social circles and denosten publicly on the sets.

However, the success of this format does not respond but his legion of followers. Followers claiming more material, claiming to have the right to be informed about the adventures and misadventures of its idyllic figures.

Apart from the ethical and political implications that may have this problem, evidently a legal dispute appears. And it is the task of the legislator first and then the judge determine what interests and rights must prevail.

The situation is complicated when the persecuted person (even hounded) It is not a first line of the tabloids, whose harassment often justified as cold allegations as "living that".

We mean, for example, the political, elite athletes, artists and other public figures. Especially after the sensationalist spin that have been taking traditional media in recent times, besieged by the popularity of social networks and Clickbait.

A fin de cuentas, it is reasonable that a citizen wants to know the honesty of their parliamentary representatives but ... does this justify intrusion into his private life?

And even more, given the strength of social media, Can poured accusations without sufficient evidence? We mean, really, what the Italian writer Umberto Eco titled as "Mud machine”.

The emergence of social networks

But media not only encompass the press, TV and radio. Social networks are increasingly influential, probably because they democratize public communication space.

Anyone can post their opinions from the comfort (and safety) your home. And this is fine, since it is merely a manifestation of freedom of expression.

However, social networks introduce some evil elements in the game:

  • On the one hand, the supposed anonymity of the user leads him to act differently than you would in a face to face. Review the network is "cheap", and as freedom of expression it is the teaching of Internet users think they are entitled to utter any insult with impunity.
  • On the other hand, the distance between the transmitter and receiver decline of that moral guilt. Carlo Ginzburg already said in "kill a Mandarin Chinese” (and long before Plato with his fable of the Ring of Gyges): distance attenuates the moral conscience. So the level of overkill in social networks is greater, increasing the severity of their insults and accusations.
  • Last, massification of information complicates verification of what is true and what is not. This, linked to the phenomenon of viralización, makes certain falsehoods run like wildfire through the virtual space.

With this aim only to note that, probably, putting at risk the derecho al honor it is inherent to the digitization. They foresaw no wonder the constitutionalists in Article 18.4 of the Constitution 1978.

Therefore, ensure the realization of this right is a challenge for the XXI century legislator. But, How this task confronts our legal system?

Protecting the right to honor in our legal system

This complexity in guaranteeing the right to honor the legislator has not daunted. Quite the contrary, references to the right to honor our legal system are plentiful and varied.

In fact, while the right to honor is a fundamental right, He has led two-way defense:

  • On the one hand, the civil protection. This system is characterized by settling civil liability and tort, whose conclusion tends to be:
    • That the injured receive compensation.
    • Or that the harasser is obliged to correct their behavior or stop promoting the violation of the right.
  • On the other hand, the criminal protection. In this case what is sought is a punishment from the harasser's conduct. Without prejudice to compensation arising from its violation of the right to honor, The main objective is that a restrictive penalty freedom or other rights apply.

Civil protection of the right to honor

Although civil legislation guarantees the right to honor is neat, it is appropriate that we begin analyzing the LO 1/1982, of civil protection of the right to honor, a la intimidad personal y familiar y a la propia imagen.

Ley Organica Derecho al honorThis law tries to identify the areas of derecho al honor and freedom of expression, although it is recognized subsidiary to criminal law. Also, It provides a definition of the right to honor on the line which we have already anticipated, following the Constitutional Court.

So, the right to honor can be defined in law, but lack of expression must assessed according to social ideas and self-concept of the affected. Thus it becomes a liquid notion, whose specific content depends on each person and moment.

Course, The law recognizes that the right to honor limits freedom of expression, but it is in turn limited by the public interest and the individual's consent.

Also, This standard determines the temporal scope of the right to honor, that It does not end with the termination of the legal personality. Namely, person, even dead or missing, You are entitled to their honor is saved.

Last, LO 1/1982 It defines what is meant as a trespass in its scope of protection and determines the channel through which can be processed defense against such interference. On this subject will later.

The criminal protection of the right to honor

This is the main way of defending the right to honor. Not only because it punishes anyone who violates this fundamental right with the most severe penalties, but because self-LO 1/1982 It defined as a subsidiary of this pathway protection.

This aspect is conflictual, because it violates the principle of final thought Criminal Law. In principle, should not resort to criminal defense except when no choice stay. However, in this case the legislature considered appropriate to give direct access to criminal proceedings who considers violated his personal prestige.

The Criminal Code dedicates Title XI of Book II to crimes against honor. In this place are the libel and slander.

both offenses, regardless of their particularities, They share a common:

  • They may be aggravated when performed dissemination (printing, broadcasting, television, social networks…). In such cases, the owner of the news media is responsible civil solidarity.
  • If committed by price (for example, "Buy" a journalist for defaming a politician or a businessman reputed) They entail an additional penalty of disqualification,  of between 6 months 2 years old.
  • However:
    • They are crimes that can only be pursued by the victim or his representative.
    • In the event that the libel or slander arising in the course of a judicial process will require judicial authorization to be prosecuted.
    • Also, forgiveness of the victim or his representative extinguished the criminal action.
    • Last, the defendant can acknowledge the uncertainty of its objections, recanting them. In this case the penalty is the lower degree to which would have corresponded, not to apply the above disqualification. Also, the injured party may request that this recognition is published.

Protecting the right to honor other sites

While it may not be right to speak of honor itself, the truth is that this right is protected by other jurisdictions. We mean, en particular, the social and the administrative.

In these cases there may be an attack against the honor of workers. In fact, This behavior is common in cases of bullying or mobbing.

We have separated presentation, however, of civil and criminal way because these would itself which would be used to claim the right to honor.

And is that when the attack on the honor occurs in the workplace (or funcionarial) perhaps it would be more appropriate to subsume the concepts of discrimination or degrading treatment.

Course, there are more appropriate categories to describe these behaviors of harassment does not preclude mention that the rights are violated dignity (art. 10 EC) and honor (art. 18 EC) and that in both cases it must compensate the employee (work or public) or official.

In the same way, contractual information maintained by the employer must guarantee this right (art. 8.4 AND), demonstrating once again that the derecho al honor transversely place in our legal system.

Also deserves its mention the Internet protection honor, which it must be protected by appropriate by those responsible for social networking and other services protocols (art. 85 LO 3/2018).

Claiming the right to honor civil headquarters

The aforementioned LO 1/1982 determina que the honor enjoys civil protection against all kinds of interference. Also, with personal privacy, family and self-image, It is configured as a right:

  • unrenounceable. Namely, the covenant by which a person renounces exercising the actions that we describe is null and void.
  • Inalienable. Which means that it can not be sold, no matter how valid the eventual transfer of exploitation rights on personal image. This type of business is extremely popular in areas already identified (gossip magazine, athletes, Models, actors and actresses…).
  • Imprescriptible. Which means that lack of exercise actions to defend these will not cease to exercise.

The content of the right to honor: consent

As we anticipated, the content of this right depends on the circumstances of each moment and person. So, to understand its limits must be observed:

  • Laws.
  • Social uses.
  • And the acts carried out by the person himself.

Thereby, the encroachments agreed to by the person or imposed by law are not considered as such for purposes of filing a civil claim.

However, This does not mean that whoever consents to perform certain acts (how to exploit the personal image) remains a prisoner of his covenant. This kind of consent is revocable, in exchange for pay where applicable, compensation for damages.

In this regard it should be recalled that the consent of minors and disabled should be complemented by their legal representatives. Also, they must inform the Prosecutor previously, which may oppose it if 8 days. In these cases, consent require judicial authorization.

But this complement ability occurs only in circumstances in which the child or incapable are not mature enough or can not decide for themselves. Otherwise, the law enables the retail or unable to act without representative.

Who can claim the right to honor

Course, who should claim the right to own honor is offended. However, We have already explained that the protection of this right extends beyond death.

Therefore, They can claim the right to honor of a deceased person:

  • First, the persons designated in the will. These are usually the closest heirs or a legatee of personal trust.
  • In the absence of this designation closest relatives, understanding as such:
    • Spouse.
    • Decendents.
    • Ancestry.
    • Brethren.
  • But, even if I none of these living relatives time the death of the victim, the Prosecutor may claim the right to the honor of the same.
    These actions can take place automatically or at the request of an interested.

Also, in the event that the die offended during the defense of his honor, any of the persons entitled to file actions in their favor may continue with the proceedings.

Namely, These people are not only authorized to initiate complaints, but also to continue them.

The deadline for submitting claims

Although we noted that the right to honor is imprescriptible, we must make a hue.

Interested parties may always submit claims on life, and testamentary defenders or their relatives after his death.

However, where appropriate the public prosecutor or a legal person to defend the honor of the deceased whether there will be a limitation period.

this reaches 80 years from the date of death, so it is a much more durable right most recognized in our legal system. However, We wanted to introduce the nuance that is, Really, the only event of limitation of rights relating to claim the right to honor.

Limitation of actions

But speaking of prescriptive deadlines, what really interests us is knowing when you can bring proceedings. In this case set:

  • A limitation period of four years since it had legitimated able to present his civil action against every trespass.
  • In the criminal case, offenses prescribed in one year, which would prevent demand the criminal responsibility beyond that period.

What is considered a trespass

The illegal interference in the right to honor or personal privacy They are the following:

  • Installation or use of recording devices or sound or video capture, in order to record or reproduce the intimate lives of people.
  • Disclosure of details of the private lives of individuals that may affect your own image.
  • Disclosure of the content of their publications or private data of a person or family.
  • Use of the name, voice or image of the person for advertising purposes, commercial or analogs.
  • Disclosure expressions or defamatory facts or detract to the affected.

As will be seen, such encroachments have traditionally been related to the derecho a la intimidad. Usually only libelous facts (and perhaps the revelation of certain private details) They have attacked the honor of the affected.

However, Digitization has brought new challenges and threats. In this sense, we can see how the legislature provided in 1982 an assumption that it will be of great importance today.

We talk about the identity fraud, the LO 1/1982 prohibits advertising purposes, but obviously also can not be used with scurrilous purposes. And this will be a huge challenge with technology deep fake, able to supplant with a high degree of precision image and even the voice of anyone.

In recent times we have seen how this technology has been used to create, for example, pornographic videos in which a person enters the shooting outside. Do advertising purposes? Not. Do they represent an illegitimate intrusion by affecting the right to honor? Undoubtedly.

judicial protection

The right to honor, ultimately, You can defend against unlawful interference:

  • In the ordinary procedural avenues. We refer to the civil and criminal mainly, but now let us focus on the first.
  • By amparo before the Constitutional Court. Do not forget that we are talking about a fundamental right.

Also, judicial protection is not limited to bringing the situation to the attention of the competent judge. The actor can also apply for the adoption of precautionary measures, oriented:

  • Stop unlawful interference as soon as possible.
  • Restore normal enjoyment of the right to honor.
  • Prevent further encroachments on this right.

On the other hand, the aim of the process will be granted to the affected:

  • Restoring their situation, where it will be safe from unlawful interference. This is the basic claim in this type of claims, and may take the form of a large number of measures.
  • Collecting compensation, based on the daños morales who have suffered because of harassment.
  • Publication of the judgment, which aims to disseminate to try to restore the damaged honor (result, as we know, it is rather difficult to achieve).

The amount of compensation for moral damages

When calculating the compensation for unlawful interference with the right to honor several issues must be Baremar:

  • First, the circumstances of the case. As we have noted, the right to honor means a tremendously circumstantially. And we all understand that it is not the same as a demerit dump a public figure that any particular.
    In the same way, Nor it is attributed the same gravity to the same insult if he utters against some people against others.
  • The severity of the injury actually produced. As it is reasonable, Compensation should be greater the greater the damage has been. Therefore, appreciate it when you have to consider how far been affected the honor of the injured.
  • Dissemination or hearing the medium through which occurred. So, is not as damaging a published expletive in a brochure of the neighborhood slander in the headlines of the major national newspapers.
    The problem is that social networks have a massive audience, sometimes exceeding even the big chains of communication. This, linked to the phenomenon of viralización, It causes the attacks on the honor through social networks are especially dangerous.

It is noteworthy that the damage is always presumed that the resulting interference accredited. Namely, to the extent that the show has been harassed victim will reverse the burden of proof, and will be the defendant who must prove that he has not attended prejudice to escape payment of compensation.

Who collects the compensation if the deceased has died?

In the event that the action is exercising after the death of the deceased, will be their assignees who receive compensation. The right to honor derives, therefore, a kind of right and duty succession.

Whenever the successor of the victim dutifully defend the honor of the deceased, You shall be entitled to compensation resulting from their actions.

A particular case of the defense of honor: Delinquent files

One of the current issues in the defense of the honor is the improper registration in files of defaulters. For managers of a file of defaulters can introduce them to a debtor required:

  • There is a certain debt, vencida y exigible.
  • Also, this debt should not "be discussed". Namely, the contested debts are not able to be registered.
  • The debtor has been informed that it will be included in a file of defaulters previously. This warning is usually done in the corresponding request for payment. Also, the owner of the file must forewarning of including a minimum period of one month.
  • That, really, the creditor is required to pay to the debtor.
  • Last, the debt exceeds 50 € and seniority is less than 6 years old.

If these requirements are not met the registrant may claim compensation, which will include moral damages (injury of the right to honor) and other damages caused (efforts, consultations, lost opportunities ...).

How to claim the right to honor in a criminal court

The criminal protection orchestrates two main roads to demand the right to honor, which they depend on the type of interference suffered:

  • Crime of libel.
  • Crime of slander.

They prescribe such offenses within a year and are aggravated when the victim is:

  • Spouse or similar, even without cohabitation.
  • Decendents, parents or themselves or the person above brothers.
  • Children and people with disabilities need special protection living with any of them or they are subject to parental authority, protection, curatorship, foster care or custody of fact.

These crimes are also aggravated when they performed publicly, which concurs in any case when they are done through Internet (social networks), or through the press or broadcasting.

Another aggravating circumstances is to commit libel or slander by price, As anticipated. In these situations the culprit can be sentenced to time disqualification for between six months and two years.

Also, to prosecute crimes of libel or slander is necessary that the aggrieved person or his legal representative are those who denounce the conduct.

In both cases the accused may escape criminal responsibility if they can prove the veracity of his allegations.

insults

The injury is described as an action or expression that injures the dignity of an individual. In this sense, enough to impair the image or fame or which harms the estimation of the victim.

However, to be considered criminal behavior need to be understood as serious by the public. Again we see the need to analyze this type of behavior from the social context.

The penalties associated with injuries are:

  • Overall, three to seven months imprisonment.
  • But if they are serious and advertising will be performed six to fourteen months imprisonment.

slanders

Slander is described as an allegation of criminal acts knowing the falsity of this accusation or made with "reckless disregard for the truth". These behaviors have an associated penalty:

  • Overall, six to twelve months in prison.
  • If publicly spread, six months to two years in prison.

If you are affected by any of the above situations, Our recommendation is that you advise for lawyer specialized in right to honor.

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