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Freedom of information is a fundamental right, recognized both in the Charter of Fundamental Rights of the European Union (Article 11) and in the Spanish Constitution (Article 20). But what happens if it comes into conflict with another fundamental right, such as the right to honor?
The characterization of freedom of information as a fundamental right should come as no surprise, since it is a concrete expression of freedom of expression and is conveyed through another right that is essential for a society to be truly democratic: freedom of the press.
From this point of view, freedom of information is configured as a right that applies to two holders, unlike freedom of expression, which is generally linked to only one. Thus, while freedom of expression is the right of a person “to freely express and disseminate thoughts, ideas and opinions”, as stated in the Constitution, freedom of information is not only the right to disseminate news, but also the right to receive it. This is precisely what the Constitution indicates, when it indicates as a fundamental right the right to “freely communicate or receive truthful information by any means of dissemination”.
Collision with the right to honor
In any case, although it is a fundamental right, freedom of information has its limits and is not absolute, often coming into collision with another equally fundamental right, such as the right to honor, to personal and family privacy and to one's image, also enshrined in article 18 of the Constitution. And it is a collision that is easy to understand, insofar as any information is always linked to a certain subject who is the protagonist, with the result that this subject will not always come out well, which will undoubtedly affect his good reputation and, therefore, his right to honor.
This latter right is not absolute either. On November 7, 1972, Richard Nixon won the presidential election with 60.67% of the vote and was re-elected President of the United States, thus occupying what is surely the most important political office in the world. However, a couple of years later, he was forced to resign from office and leave politics, without even being able to return to practice his profession as a lawyer, having been disbarred and expelled from the Bar Association. And all this, to a large extent, was a consequence of the investigative work of two journalists, Bob Woodward and Carl Bernstein, who were in charge of uncovering the Watergate scandal, which led to Nixon's resignation and, even beyond that, to the complete destruction of his reputation.
It is clear that Richard Nixon's honor was damaged. And it is also evident that all kinds of damages were caused to him. However, there was nothing punishable in the actions of the aforementioned journalists, for one essential reason: at all times they were disseminating “truthful information”.
This concept of truthful information, expressly referred to in Article 20.1.d of the Constitution, is the cornerstone of the correct and responsible exercise of freedom of expression, especially when we refer to it in terms of freedom of the press. Therefore, when journalistic information collides with the right to honor, when it may be susceptible to attack the good reputation of any person, the key element to be analyzed is to what extent the information disseminated is or is not truthful.
Requirements for the right to information to prevail
The case law of the Supreme Court is abundant when it comes to weighing up freedom of information and the right to honor, as a result of the inevitable tendency of one and the other to collide. For this reason, it is possible to identify very clearly the three requirements that must be met by any news item that is published, so that freedom of information can prevail over the right to honor.
Because it must be clear that the right to honor will be affected on many occasions. The good reputation of the protagonist of the information will be damaged. Because the effect of an information is not innocuous. But it is understood that freedom of information deserves greater protection than the avoidance of these possible damages when the three requirements referred to above are met, which are as follows:
- The information disseminated must be of public relevance or general interest. This is a way of expressing that the news should not be anecdotal or inconsequential. The identity of the protagonist, the seriousness of the facts or the projection they may have on the public, collective or large number of people's interests are elements that can be used to distinguish when a news item meets or does not meet this requirement.
- It must be truthful information, that is to say, it must be duly contrasted. It cannot be based on the simple opinion or on the first impression of the journalist who discloses it but must derive from what he/she has been able to obtain from authorized and plural sources. Because of its importance, we will refer to it later in greater depth.
- The information must be expressed in a correct tone, as far as possible aseptic and objective, or, at least, avoiding outrageous or denigrating expressions, even when the facts that are being exposed could deserve a certain lack of consideration. Because such inconsideration, if possible, should be made by the addressee and never by the sender, who should limit himself to presenting the facts of which he has had accurate news.
It is particularly illustrative in this regard, due to the summary it makes of all these requirements, the Supreme Court Ruling 358/2014, of July 1, so that it can serve as an interpretive parameter or even as a guide for action for a media before the dissemination of a particular news item.
When can information be considered true?
Although it may seem a more philosophical than practical discussion, it should be pointed out that truthful information is not the same as true information, this being a distinction that has a very important legal effect, about what we are analyzing here.
True information could be defined as that which gives news of an objective and indisputable fact: January 1st is the first day of the year according to the Gregorian calendar. The example may sound almost absurd, but it is very difficult to find absolute truths, as Schrödinger already pointed out with the paradox of the cat. Truthful information does not necessarily aspire to be true, but only to be properly contrasted.
If we look at Schrödinger's experiment we can see it clearly: the cat is enclosed in a box and, as long as we do not open it, we will not know if it is alive or dead. A journalist who wanted to publish a news item on the subject should consult the corresponding sources and, after talking to four people who claimed to have looked inside the box, if those four people assured him that they have seen that the cat is alive, even one of them showing him a photograph to prove it, he could give that news item. It might not be true information, inasmuch as the four sources could have lied and the photograph could be false, but it would at least be true information, inasmuch as a diligent and sufficient contrasting work would have been done.
There is no doubt that this professional diligence of the journalist, this work of investigation and contrast, will help the truthful information to become true information as well, but there is no absolute guarantee. A positive point for Schrödinger.
For this very reason, the Supreme Court, in the Ruling referred to above, does not focus on the truthfulness of the information, but on its truthfulness, depending on the degree of diligence applied by the professional who has prepared it: "It is a requirement for freedom of information to be protected by constitutional protection that it be truthful, truthfulness being understood as the result of reasonable diligence on the part of the informant to contrast the news according to professional guidelines adjusting to the circumstances of the case, even when the information, with time, may later be disproved or not be confirmed, that diligence being lacking when simple rumors lacking verification or mere interventions are transmitted as facts. "
As can be seen, the Supreme Court not only does not require that the information be strictly true but even admits that it may later be disproved, because what is relevant for truthfulness, in legal terms, is that the journalist has applied the lex artis required of his profession and that, therefore, the information he disseminates is the result of all the contrasting work that his good practice requires.
The lawyers of our litigation and arbitration department have extensive experience in cases of collision between freedom of information and the right to honor, so they can identify very well when the former prevails and when the latter prevails.
Director of the litigation and arbitration department
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