The Supreme Court has issued judgment 201/2019, of April 3, in the Appeal 2013/2018, regarding the Unlawful interference with the right to honor of the bullfighter Víctor Barrio through a message posted on Facebook.
http://www.poderjudicial.es/cgpj/es/Poder-Judicial/Tribunal-Supremo/Noticias-Judiciales/El-Tribunal-Supremo-confirma-la-condena-a-una-edil-por-intromision-en-el-honor-del-torero-Victor-Barrio-en-Facebook
The facts go back to some statements made by a councilor of a Valencian municipality on Facebook on July 10, 2016. In that message, published the day after the death of the bullfighter in the bullring, alluded to the “positive aspect” of the news and described the deceased as a “murderer”.
The widow and parents of Víctor Barrio filed a civil action for the protection of the right to honor against the author of the message. The defendant alleged, among other circumstances, that her message was not intended to undermine the reputation of the deceased, but to make a legitimate criticism of the activity of bullfighting, and that she was a member of a party, which she represented as a councilor in a city council, whose political ideology included the defense of animal rights.
Both the Court of First Instance and the Provincial Court upheld the lawsuit, which ordered the councilor to pay 7,000 euros in moral damages for the comment she posted on Facebook. An appeal in cassation was filed against the latter.
The judgment of the First Chamber of the Supreme Court, after explaining the technique of weighing the fundamental rights in conflict (the right to honor in respect of a deceased person and freedom of expression), recalls that the prevalence of freedom of expression is not absolute, but functional, to the extent that it is exercised in accordance with its nature and function, in accordance with the constitutional parameters, that is, when it contributes to public debate in a democratic society and does not seriously and unnecessarily infringe the area protected by the rights of the personality, in plenary session, dismissed the appeal filed against the judgment that had found unlawful interference with the right to honor of the bullfighter Víctor Barrio for a message published on Facebook.
The Supreme Court considers that the defendant’s statements did not consist of a criticism of bullfighting or bullfighters in general, but referred specifically to a person who had just died in a traumatic way. And in them, not only did he not show the slightest compassion, but he also expressed a feeling of joy or relief for the death of the person whom he unequivocally labeled as a “murderer”, whose death, according to what he said, had “positive aspects”. The sentence emphasizes that the offensive charge of the term “murderer” is evident and that the use of such an expression cannot be trivialized.
These were expressions that violated and disturbed the pain of the relatives and the memory of the deceased, especially because of the moment in which they were uttered and the vexatious tone used. Social customs delimit the protection of the right to honor, and among the social customs of a civilized society is, as a minimum requirement of humanity, respect for the pain of the relatives in the face of the death of a loved one, which is aggravated when the deceased is publicly veiled. In the light of these circumstances, the Court considers that the upholding of the claim for protection of the right to honor, and the restriction of freedom of expression that it entails, meets the legal requirements and is proportionate, bearing in mind that it is the upholding of a civil claim, with much less severe consequences than a criminal conviction, and that it is fundamentally aimed at repairing the reputation of the offended party and, in this way, alleviating the pain of his family members.
