This article sets out the law in relation to the “right to honour” as protected in Spanish law. In particular, it focuses on whether corporate bodies also enjoy this right.
There is no law that expressly confers the right of honour on corporate bodies. However, there is sufficient legal authority for the view that they do, in fact, enjoy this right. A consideration of the two fundamental principals of the nature of law and the concept of honour will confirm this view.
The right to honour and corporate bodies
This is a fundamental right, as laid down in the Spanish Constitution. Under Spanish law, the right of honour is traditionally considered to be a personal, human right because each fundamental right is, in effect, legal recognition of human dignity.
However, the Spanish Constitution treats each person as not only an individual, but also as part of society with both social needs and desires. In this sense, fundamental Spanish legal principles recognise collective bodies of individuals and specifically address some of these collective bodies, including political parties, trade unions and religious groups. In this sense, although fundamental rights were originally developed for natural persons, the law recognises that certain groups also enjoy such rights. For example, the law recognises the religious freedom of certain communities.
Therefore, our fundamental rules leave open the possibility of legal persons enjoying the right to honour, which in turn, leaves open the possibility that corporate bodies can also enjoy fundamental rights. Notwithstanding, neither the Constitution nor subsequent Spanish legislation (such as the Organic Law of the right to honour, to protection of private and family life and to protection of personal reputation, of 5 May 1982), expressly state that the right to honour is enjoyed by corporate bodies.
Nevertheless, various legal authorities have considered whether the right to honour should extend to corporate bodies. The answer is not obvious in the context of other fundamental rights (for example the right to life), because it would make no sense to confer certain of them on corporate bodies. On 2 February 1989, the Constitutional Court recognised this point and stated that “in our constitutional system,…, legal people…are also governed by fundamental rights to the extent that, due to their nature, they are applicable to them”.
It would therefore appear that legal persons can enjoy the right to honour.
”Honour” is not defined in legislation. However, an understanding of the concept can be gleaned from case law. Case law states that honour is the view that is formed by other people as regards a person’s qualities, regard, and esteem. In this sense, the Dictionary of the Royal Academy of Language defines honour as:
“glory or good reputation that comes from virtue, merit or heroic actions, which makes known the families, people and actions of those who obtain it”.
In the context of corporate bodies, it is necessary to modify the definitions set out above. Corporate bodies can enjoy fame, esteem and praise within the society in which they are active and will understandably wish to protect these from attack.
This was recognised for the first time on 29 September 1995 when the Supreme Court ruled that:
“it is evident, then, that through the ends for which each private legal person has been created, a scope of protection of his own identity can be established in two different senses: both to protect his identity when it carries out his objectives and to protect the conditions of the exercise of his identity, under which he would fall back on the right to honour. As long as this is true, the right to honour of a legal person can also be injured through the disclosure of facts concerning his entity, when he is defamed or discredited in the opinion of others”.
This ruling was affirmed in subsequent Supreme Court and Constitutional Court cases.
We now turn to consider the hypothetical situation where Company A has posted an article on its website stating that Company B has been defrauding customers.
On the assumption that the article was made without any proper basis and was, in fact, defamatory, we consider:
a. what remedies (if any) Company B would have against Company A in Spain; and
b. whether the position would be any different in this jurisdiction if (i) one of Company A's directors (Mr A) had also defamed Company B; or (ii) the article posted by Company A also defamed a director of Company B (Mr B).
Options that are available to a company that has suffered damage to its honour as a result of lies intentionally spread by another company or natural person:
There are several possible causes of action by which corporate bodies can protect themselves: criminal, civil, unfair competition and public denigration.
These are set out in more detail below:
a. Under the Spanish Criminal Code defamation is an act or communication that harms another’s dignity, discrediting his fame or attacking his self-esteem. It is a criminal offence and prosecution will be pursued at the request of the harmed party. The company will, therefore, be able to choose whether to pursue a criminal action or to pursue the other options that are available. In most cases, it is not advisable to pursue criminal action because there is a Supreme Court which bars civil proceedings if a criminal prosecution is pursued.
b. In ordinary law, “defamation” refers to different kinds of civil offences against a person’s reputation (Organic Law of the right to honour, to protection of private and family life and to protection of personal reputation, 5 May 1982). The law against unfair competition uses the term “denigration” to refer to exactly the same kind of action. This means that there is significant overlap between civil defamation and unfair competition denigration actions. However, this does not mean that businessmen, professionals, companies and legal persons can opt for either type of action. They should pursue an unfair competition action when the conduct not only affects the interests of the company, businessman or professional, but also affects third parties (e.g. consumers).
c. A public denigration action can be pursued when the publication of the information is intended to cause economic or commercial damage. As in cases of unfair competition and civil actions, public denigration actions are preferred if these requirements are met.
Options that are available to an individual person who is the subject of such an attack.
Where a person has only been attacked in the context of his personal/private life, rather than his economic or commercial interests, he could pursue either a criminal action or civil action (set out at (a) and (b) above). However, when a person is not only a private individual, but also a professional or businessman who is attacked for economic reasons, he will be entitled to the additional remedies (set out at (c) above).