The crimes of slander and libel are regulated in articles 205 to 216 of the Criminal Code and protect the right to honor. Apart from the behaviors punished in these precepts, the Criminal Code also punishes other behaviors that violate honor in other articles, such as slander or libel directed at the King, the Crown, the Legislative Assemblies, the army and security forces…

All these offenses protect the right to honor, a right that, in many situations, conflicts with the freedoms of expression and information. In fact, the Supreme Court itself establishes that, if the expression may conflict with these freedoms, the criminal judge must examine whether the facts are part of the legitimate exercise of freedom of expression and information, because in that case they could not be punished by criminal law (STS No. 20185/2022 of March 14).

To this end, the Courts consider that the right to disseminate information prevails, even if it may be detrimental to the right to honor, if the information is of public interest and, in addition, is truthful (it is not necessary that the information is actually true, but it is sufficient that the author has been diligent in verifying the truthfulness of the information). Likewise, according to case law, the right to freedom of expression prevails over the right to honor when the expression refers to a subject or activity of a public nature, and such expression is necessary to expose a certain idea or opinion.

Slander

The crime of slander, regulated in art. 205 of the Penal Code, consists of imputing a crime to another person with knowledge of its falsity or with reckless disregard for the truth. The penalty associated with this crime varies depending on whether the criminal act is publicly disseminated or not:

1. If it is disseminated with publicity, the penalty is imprisonment from 6 months to 2 years or a fine of 12 to 24 months.

1. Otherwise, the facts are only punishable by a fine of 6 to 12 months.

What are the elements of the crime of slander? According to the Supreme Court, the elements that make up this crime are the following (STS No. 627/2022 of June 23):

• That an accusation of a crime has been made, that is to say, that someone has been accused or attributed the commission of a criminal act.
• Such accusation must be concrete and definite. Mere generic attributions are not enough, but the accusations must be based on a concrete and determined fact, criminally catalogable.
• That such imputation is false: the imputation of a true fact cannot be constitutive of slander. Therefore, art. 207 of the Penal Code establishes that the accused for the crime of slander is exempted from any penalty if he proves the criminal fact that he has imputed to another person.
• From the subjective point of view, the imputation must be made with knowledge of its falsity or with reckless disregard for the truth.

Injury

The crime of slander consists of performing an action or uttering an expression that injures the dignity of another person, undermining his or her reputation or undermining his or her self-esteem (art. 208.1 of the Penal Code).

Only insults that are considered serious are criminal, taking into account that insults consisting of the imputation of facts will not be considered serious, unless they are made with knowledge of their falsity or reckless disregard for the truth. However, slight insults are also punished in a specific case, if the insult or unfair humiliation of a slight nature, only if it is directed to the person who is or has been his spouse or person linked to him by an analogous relationship of affectivity, descendants, ascendants or siblings of the spouse or cohabitant, persons integrated in the nucleus of family cohabitation, or persons who due to their special vulnerability are subject to custody or guardianship in centers (art. 173.4 of the Penal Code). The penalty associated with this crime is permanent localization from 5 to 30 days (in a different domicile far from the victim’s) or community service from 5 to 30 days, or a fine from 1 to 4 months. This same penalty is also applicable to subjects who address another person with expressions, behaviors or propositions of a sexual nature that create an objectively humiliating, hostile or intimidating situation for the victim.

On the other hand, Article 210 of the Penal Code introduces the possibility of exemption from liability for those accused of libel, provided that they are able to prove the truth of the accusations, when these are directed against public officials on facts concerning the exercise of their duties or referring to the commission of administrative infractions.

When is an expression offensive to the point of being criminal? The Supreme Court has made it clear that the offense can be produced not only by means of categorical statements or insults, but also through the dissemination of inconcrete suspicions that create, to the addressee, the impression that the person to whom such facts are attributed is someone unworthy (STS No. 866/2008 of December 1). Consequently, the insult can be made by means of both oral and written expressions, gestures, drawings…

As with the crime of slander, the penalty associated with the crime of libel varies depending on whether or not there is publicity:

1. If the insults are carried out with publicity, they are punishable by a fine of 6 to 14 months.
2. Otherwise, the penalty is reduced to a fine of 3 to 7 months.

Provisions common to the offenses of libel and slander

On the other hand, art. 214 of the Penal Code allows for a reduction of the penalty, imposing the lower penalty in degree, if the accused acknowledges before the Judge the falsity or lack of certainty of the accusations and retracts them, and the Judge may also, at his discretion, not impose the penalty of disqualification indicated in the preceding paragraph.

In relation to the procedure to be followed for the prosecution of the crimes of slander and libel, it is necessary to file a complaint by the victim or his legal representative, although it is possible to act ex officio if the offense is directed against a public official or authority on facts related to the exercise of the position. In addition, in the case of slander or libel committed in court, the prosecution of the facts requires the prior license of the Judge who would have heard the case.

Finally, the forgiveness of the offended person extinguishes the criminal action (art. 215.3 of the Penal Code).