On 20 April 2021, the Supreme Court of Spain handed down judgment no. 222/2021, upholding the appeal and declaring that a series of opinions published by a lawyer in a blog and on Twitter did not violate the right to honour of the plaintiff companies because it is his freedom of expression that prevails.

Specifically, this lawyer had stated that these companies actually acted as de facto cooperative liquidators.

The judgment analysed the elements that must be present for freedom of expression to prevail:

(a) The statements must be related to a matter of general interest. The court considers that this is the case here given that the statements are aimed at housing cooperatives and people interested in acquiring a home in this way.

(b) Opinions or value judgments are not required to be truthful, but they must have a sufficient factual basis. In other words, the element of truthfulness is interpreted in a superficial or narrow way. The court considers that this is the case here because the defendant based its opinions on a contract, on data obtained from official records, and on a report by an insolvency administrator.

(c) Insulting expressions should not be used. This is not the case here.

It is worth noting that the most complex and disputed element in these lawsuits is truthfulness. In this regard, when the conflict is between the right to honour and freedom of information, the requirement of truthfulness is higher and must be rigorously substantiated, but when the conflict is between the right to honour and freedom of expression, this element is of lesser importance.

However, it is often difficult and debatable to interpret whether a particular statement is being made under freedom of information or freedom of expression given that it is common for information and opinions to be mixed. In such cases, the two messages must be separated, or the predominant element of the statement must be taken into account.

The specific case analysed perfectly demonstrates the complexity and difficulty in assessing these conflicts as both the Court of First Instance and the Provincial Court had upheld the claim, that is, they had considered that there was interference with the plaintiff companies’ right to honour. However, the Supreme Court overturned these rulings and changed the assessment thus giving priority to freedom of expression.

Antoni Faixó
Dispute Resolution Area