Sources of the Right to Communication: Legal Framework
**LESSON 3: Sources of the Right to Communication**
3.1. Concept: Sources of Law
3.2. The Spanish Constitution (CE)
3.3. International Texts and Conventions
**1. The Universal Declaration of Human Rights**
The Universal Declaration of Human Rights (December 10, 1948).
Article 19: Everyone has the right to freedom of opinion and expression; this right includes the right not to be disturbed because of their opinions, and to seek, receive and impart information and ideas, regardless of frontiers, through any media.
Characteristics of this provision:
- Universality of the article (3 dimensions)
- a) Subjective: everyone
- b) Geographic: regardless of frontiers
- c) Means: by any means of expression.
- Joint regulation of the rights to freedom of expression and opinion and the right to information. (Close relationship between the two rights, but they are independent rights: reporting different opinions, opinions/facts)
- Defining the core content of the right to information in this provision.
- 3 items/activities: research, disseminate and receive information.
- (Every individual can perform these three activities)
- No limits or restrictions on the right.
The legal effectiveness of the provision at the international level is very low. The statement does not grant individuals the right of action before the competent organs of the UN to ensure the enforceability of the law, nor does it provide any other control mechanism. (http://www.rsf.org/)
The interpretation of Article 20 of the Spanish Constitution should be performed in accordance with this article. (Article 10.2 of the Spanish Constitution)
2. The International Covenant on Civil and Political Rights
(UN General Assembly, December 16, 1966).
Article 19:
- No one may be harassed because of their views.
- Everyone has the right to freedom of expression; this right includes freedom to seek, receive and impart information and ideas through any media, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of their choice.
The right under paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these should nevertheless be expressly established by law and be necessary:
- a) For respect of the rights or reputations of others;
- b) For the protection of national security, public order, health or morals.
The provision introduces new limits on the right:
- Limit: Respect for the rights and reputations of others. (Honor, privacy and publicity)
- Limit:
- a) The protection of national security
- b) public order
- c) public health
- d) public morals.
- Legal efficacy of the precept.
3. The European Convention for the Protection of Human Rights and Fundamental Freedoms
(Council of Europe, November 4, 1950)
Article 10. Freedom of expression.
- Everyone has the right to freedom of expression. This right includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Comments:
- Freedom of opinion and information is included within the right to freedom of expression.
- More restrictions are introduced on the exercise of these freedoms, and these limits are based on what is necessary in a democratic society:
- Preventing the disclosure of confidential information.
- Maintaining the authority and impartiality of the judiciary.
- It does not allude to the activities included in the right to information.
Legal validity is instrumentalized through the European Court of Human Rights (ECHR).
4. Charter of Fundamental Rights of the European Union
The Nice European Council
The Nice European Council adopted a declaration on the future of the Union which called for a broader and deeper debate on the future of the Union. The declaration raised, among other issues, the status of the Charter of Fundamental Rights of the European Union.
The Charter was published in the Official Journal of the European Union (OJEU) on December 18, 2000. (Lisbon Treaty, December 13, 2007).
Article 11. II:
- Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
- The freedom and pluralism of the media shall be respected.
In the second section, it is referred to as the European Constitution.
Article II-71. Freedom of expression and information
- Every person has the right to freedom of expression. This right shall include freedom to hold opinions and to receive or impart information or ideas without interference by a public authority and regardless of frontiers.
- The freedom and pluralism of the media shall be respected.
Signed in Rome on October 29, 2004, by the Heads of State and Government of the Member States of the European Union.
Absence of the ratification process in each Member State of the Constitution.
2. Spanish Law
LAW 10/1988 of May 3 on Television.
05/01/1984 Head of State BOE
LAW 46/1983 of December 26, regulating the Third Television Channel.
12/01/1980 Head of State BOE
LAW 4/1980 of January 10, Statutes of Radio and Television.
LAW 22/1999 of June 7, Amendment of Law 25/1994 of July 12, which incorporated into Spanish law Directive 89/552/EEC on the coordination of laws, regulations and administrative provisions of Member States concerning the pursuit of television broadcasting activities. BOE 03/25/1999 MINISTRY OF DEVELOPMENT
NOTE: THIS MATERIAL IS INCOMPLETE AND NOT UPDATED AS OF JUNE 2006. It must be completed and updated.
**3.3: Characterization of the Right to Information**
Information should be free. Through the prohibition of prior censorship, the freedom of information is ensured. Only judicial sequestration of publications is permitted through art. 20.5 of the Spanish Constitution, which states that sequestration can only occur when there is a breach of the right to honor, privacy, self-image, children, etc.
The information should be plural, as per art. 20.3 of the Spanish Constitution, with proper parliamentary scrutiny, plurality is reflected.
The accuracy of the information does not refer to the journalist reporting only the facts that have happened, but to performing good professional practice. This includes good practice in the research and development of a story.
The level of care concerns the immediacy required of the journalist to develop the information, and to be truthful. Therefore, under certain circumstances, the level of care should not decrease.
Naturally, the journalist is not required to conduct exhaustive research, so they can make mistakes, which are not taken into account.
Professionalism dictates that information should not be manipulated. The codes of ethics of the profession must be taken into account. And, of course, sources should be contrasted.
When it comes to the right to honor, more rigor is required of the journalist. Three cases:
- When the information affects the right to honor, the level of professionalism in verifying the information should be higher.
- When the presumption of innocence is involved, the rigor in characterizing the information is paramount.
- When it comes to issues of great social, political or economic importance, the same applies.
Exercising the right to privacy (art. 10.2 CE – art. 50 Rome Convention) is not present in the Spanish Constitution.
Exercise of research access or art. 105. b of the Spanish Constitution – free access to administrative records, with two conditions: national security and individual privacy. The joint chiefs of staff, prime minister and the defense ministry decide what is classified as secret, what can be accessed and what cannot. Through access to representatives and senators, the ombudsman, as manager of the rights and freedoms. We can make use of secret information, which is often classified as normal, in terms of state security. In addition to the Spanish Constitution, there is the civil access law. The gag is that until the summary is published, it cannot be accessed.
Dissemination of information: through the creation of media, policy measures are required for radio and TV. Especially since radio space is limited to the public. To create a media outlet, an administrative concession is granted.
Being informed: we are entitled to legal information (Official State Gazette (BOE) and official bulletins of the Autonomous Communities), to know the issues affecting the government’s political control (Spanish Constitution), and to information of general interest that the government has a responsibility to provide.
Differences between freedom of expression and information, and common elements:
The fundamental rights of Section I are necessary for the existence of the democratic state, individual freedom and the cognitive development of people. They must coexist for the existence of a free public opinion. Both are limited and have warranties.
With freedom of expression, we refer to opinions, ideas and value judgments. While information refers to facts and events, which must be of public interest. Opinions cannot be subjected to judgments of veracity, unless facts are included in these views, but the information itself can. The conscience clause does not protect freedom of expression, but it does protect the profession of journalism. It seems that freedom of opinion is more extensive than information because freedom of expression covers an entire idea, opinion, etc., and is not subject to a trial of truth. The limit of freedom of expression is human dignity and social peace.
**Rights to Honor, Privacy and Reputation as Limits of the Freedoms of Expression and Information**
The right to reputation, privacy and reputation (art. 18. 1 CE), despite its specific individual nature, have something in common: they are designed to protect the dignity of the person, the scope of freedom and privacy reserved for themselves, against interference by public authorities, social groups or others. These rights affect individual freedom and social peace. It follows that these rights are called autonomous rights, basic human rights, individual civil rights… These rights directly affect the psychological and intellectual identity of the individual; they are rights associated with their own personality, so they are also called personality rights.
The rights of art. 18. 1 CE are set as limits of the right to free public communication (art. 20. 4 CE), which are rights, as we know, despite their individual size (affecting individual development of the person), their social dimension is so important (they determine the existence of a free public opinion and political participation) that, unlike the rights of art. 18.1 CE, they are included in a different category, in particular, in civil liberties and rights for participation.
The freedoms of expression and information ensure political freedom and individual freedom. The right to reputation, privacy and reputation ensure individual liberty. These are two different categories of rights, which belong to individuals and, hence, are necessary for the existence of social peace in a democratic state of law, at the same level (there is no hierarchy of rights) and enjoy the highest level of constitutional guarantees, as both are located in the 1st section of Chapter II, Title I of the Spanish Constitution.
The rights in article 18.1 of the Spanish Constitution have civil and criminal protection. Organic Law 1/1982 of May 5, on the civil protection of the right to honor, personal and family privacy and image (LOPC), protects these fundamental rights against all types of illegitimate interference established in the law itself, ensuring the necessary measures to put an end to the interference and restore the injured party to the full enjoyment of their violated fundamental rights. The criminal protection of such rights is ensured by Organic Law 10/1995 of November 25, on the Penal Code (CP), which criminalizes actions that violate these rights. However, since it is the individual who determines their dignity, these are not prosecuted ex officio, but only at the request of a party, although in some cases the public prosecutor may intervene.
These rights, as recognized by the LOPC (art.1.3), being inherent to human beings, are inalienable, imprescriptible and unwaivable; any waiver of their protection is null and void. No one can sign a waiver of something that is directly related to human dignity; it is null and void for the Spanish legal system.
A different matter is that each individual, freely, may have a different consideration of their own honor and privacy from that of others and may think that expressing certain private aspects of their life does not imply a waiver of their privacy, nor of their dignity as a person. Public exposure of a person’s image is free. Thus, a person’s image may be transferred, with prior consent (section 2.2 LOPC) and even reversed, resulting in compensation. (Art. 2.3 LOPC)
It is difficult to specify these rights, as it is the individuals themselves who determine them, and of course, society. They are concepts that change over time and are treated differently depending on the individual and the society in which they develop.
All children benefit from special consideration in the exercise of these rights. Since they lack sufficient criteria to freely determine their scope, their parents or legal guardians must ensure their full exercise, as must the government. Therefore, illegitimate interference in these rights, when it affects minors, must be reported by the Public Prosecutor (Organic Law 1/1996 of January 15, on the Legal Protection of Minors (LOPJM)) and the transfer of image rights of children, when their conditions of maturity do not allow them to do so themselves, must be informed in advance by the Public Prosecutor (art. 2 LOPC).
The rights of art. 1.18 CE have explicit legal recognition in various international instruments ratified by Spain on Human Rights, which, as everyone knows, serve as a hermeneutic indicator of the Rights and Freedoms, part I (art. 10.2).
**The Right to Honor**
Definition: The Right to Honor (art. 18.1 CE) is not defined in any of the legal standards that recognize and protect it, a logical consequence of its high degree of abstraction and conceptual indeterminacy. The Constitutional Court defines it as the Right to a good name, self-esteem and the consideration of others about us. This shows that this right has two aspects: a subjective one, which is the consideration of oneself and one’s own dignity, and an objective one, which is the esteem and vision that others have of us.
Schopenhauer, based on the maxim that honor is the opinion others have about us, and especially the general opinion of those who know something about us, analyzes honor from a philosophical perspective and states that our true nature is what determines the opinion of others, and only when it coincides with our true nature do we find real honor. But honor, understood from this maxim as social recognition, even if it is not true honor, is absolutely essential to ensure a pleasant and acceptable life. As social beings, being despised by others can be unbearable, whether for sexual, ethnic, religious or any other personal or social condition, or for the censorship of legitimate behavior that is rejected by certain sectors of society. Hence, an attack on a person’s good name implies an attack on their dignity and their right to honor, but it only affects the objective dimension of this right.
Taxable holders of this right:
1st Any individual, whether or not a Spanish citizen, as the duty to honor derives from the dignity of the human being, is born with the individual and dies with their death. Deceased persons lose their fundamental right to honor (Constitutional Court Ruling 231/88), although they retain civil protection under the law for 80 years after their death (art. 4 LOPC). Children have a special protection regime (LOPJM).
2 Legal persons are also holders of this right since Constitutional Court Ruling 139/95 and have the protection of this right when they are defamed or made unworthy of the consideration of others. Many authors disagree with this possibility recognized by the Constitutional Court, considering the nexus of the fundamental rights of art. 1.18 CE with the dignity of the person (art. 10.1 CE). Furthermore, legal persons already have their right to a good name protected in art. 1902 of the Civil Code.
3 Ethnic or social groups without legal personality have had their right to honor recognized in Constitutional Court Ruling 214/91, based on the fact that any member of a particular social or ethnic group residing in our country (…) can seek the protection of this right when the offense is directed against their entire group. This has also been criticized by some academic writers.
So far, public institutions lack the right to honor. Constitutional Court Ruling 107/1988 states that honor is a consideration referable to individual persons, making it awkward to speak of the honor of public institutions, and claiming that only individuals engaged in public office are holders of this right. While it is true that this Constitutional Court Ruling is a precondition for the recognition of the right to honor of ethnic or social groups and legal persons, the offense in that ruling was directed against many judges. This does not mean that state institutions are unprotected against actions that discredit them; what happens is that such protection, for now, is not provided under art. 18.1 CE.
Illegitimate actions involving a breach of the right to honor are established in the LOPC and the LOCP.
Attribution or dissemination of false or true facts that lack general interest and produce disrepute:
May be accompanied by liability for illegal action:
The imputation to a person of facts that in any way injure their dignity, undermining their reputation or attacking their self-esteem. (Art.7.7 LOPC) or the disclosure of facts concerning the private life of a person or family that affect their good name (art. 7.3). These are two very similar provisions.
In the first case, if it can be proven that the action has actually occurred, that is, the truth of the attribution, and the issue is of general interest, the rule of *exceptio veritatis* would apply and no responsibility would be assumed, as it has been the very person who, through their actions, has violated their honor, and the reporter has legitimately exercised their right to communicate truthful information (art. 20. 1 d) CE).
If the subject has no interest, even if it is the very person who has committed the action that diminishes their good name in the eyes of society, the action of disclosing that fact is devoid of public interest, which causes direct injury to the objective side of the right to honor and therefore the rule of *exceptio veritatis* would not apply.
In the second case, the rule of *exceptio veritatis* would never apply, since it refers specifically to the disclosure of facts affecting a person’s reputation in relation to their privacy.
The allocation of shares can also generate criminal responsibility
The LOCP considers a crime or offense against honor to be injury, which consists in the imputation of facts (not criminal) that injure the dignity of another person, or attempt to undermine their reputation or attack their self-esteem, but only those which, by their nature, effects and circumstances, are considered in the public concept to be serious, and are considered serious when they are carried out with knowledge of their falsity or reckless disregard for the truth (art. 208 LOCP).
In other words, the attribution of true or false facts that violate honor constitutes a minor offense of injury. Needless to say, if the facts are true and of general interest, the rule of *exceptio veritatis* would apply.
The attribution of false facts in breach of honor, if done with knowledge of their falsity or reckless disregard for the truth, is a crime of libel.
If what is attributed are crimes, we are dealing with a different and more serious criminal figure: slander, which is the accusation of a crime made with knowledge of its falsity or reckless disregard for the truth (art. 205 CP).
Logically, in this case, *exceptio veritatis* always operates.
To commit a crime of slander or libel, it is necessary to have the deliberate intention to injure (*animus iniurandi*) or slander (*animus infamandi*), that is, to deliberately cause damage.
In any case, insult or slander must be made publicly (public broadcasting also increases the penalty), but no one shall be convicted of libel or slander without a complaint by the aggrieved party. Hence, the culprit of them should be exempt from criminal liability through the forgiveness of the offended party.
Thus, the allocation of shares to affect the good name of a person must be tested and be of public interest. The problem is mainly to elucidate what is of public interest, especially in those borderline cases where there is doubt about which right should prevail: the right to receive truthful information.
In general, one could argue that the following would not affect the right to honor (18. 1 CE) and are covered by the right to communicate and receive information (20. 1 d)): acts that, even if they bear some disrepute, are of public interest:
Facts directly relevant to the right to a free public opinion, inherent to political pluralism and the democratic state. In this sense, public officials (political office representatives) have the weakest level of protection, having to bear a greater awareness by others of their behavior, as they display an activity of public interest in managing general interests. Court ECHR, CT.
2 The expression of value judgments about a person that produce disrepute.
It involves liability:
The expression of value judgments, through actions or expressions that in any way injure a person’s dignity, undermining their reputation or attacking their self-esteem (art. 7.7 LOPC)
Criminal responsibility.
The crime or lack of offense that the LOCP defines as an action or expression that injures the dignity of another person, or attempts to undermine their reputation or attack their self-esteem, although it will only constitute a crime when, by its nature, effects and circumstances, it is considered serious in the public concept (art. 208 LOCP). In all circumstances, the intention to offend (*animus iniurandi*) is required, as is the actual injury to the person’s dignity. For the injury to be a criminal offense, it must be perceived by the public as serious, and here again, we move into the realm of subjectivity. In any case, the court must take into account the context in which the expression occurs.
This article, like the previous ones, is certainly legally indeterminate, and even more so when the field of honor is determined decisively by the ideas prevailing at any time in society and the concept that each person, according to their own acts, maintains on the matter and determines their patterns of behavior (preamble LOPC). The civil protection of honor will be defined by the laws and social practices in response to a field which, by its own nature, each person reserves for themselves or their family (art. 1.2 LOPC). It may be the courts, as guarantors of the rights and freedoms of the Spanish Constitution, which, in the resolution of the case, configure the design of the right to honor.
Generally, answering the questions: How far does the criticism allowed go? Or when is honor violated? It is not easy. The absolute limit of the expression of value judgments, that is, freedom of expression, is undoubtedly in personal dignity and ensuring social peace, but each case is different, and we are dealing with indeterminate legal concepts that, although they are resolved through legal technicalities, are not exempt from a particular ideological conception of the people vested with the *potestas* to elucidate them.
The ECHR, the Constitutional Court and the Supreme Court have defined some criteria to be applied to specific court cases that are resolved.
The ECHR
Public officials (political office representatives) must support a greater level of criticism than other individuals in society, both because of their conscious public exposure to the media and citizens and because of their management of general interests, and to ensure a free public opinion (political freedom), the foundation of a democratic society. (ECHR Lingens, July 8, 1986)
The jurisprudence of the Supreme Court and the Constitutional Court
- The Spanish Constitution does not recognize the right to insult.
- The context in which the expression occurs.
- The right to honor includes occupational prestige.