The debate is already served publicly for days, although In the judicial route it has stopped. The publication of Hatethat Anagrama edits and signs the writer Luisgé Martín, has raised crosses of opinions on whether he must allow the dissemination of the First confession of José Bretón del Murder of their two children. Or, on the other hand, there is a prevail to protect the rights (of the children to whom he snatched his life) invoked by his mother, Ruth Ortiz.
This woman brought before the Provincial Court of Córdoba and the Minors Prosecutor’s Office that the exit for the sale of the literary work is avoided because He goes against the rights to honor, intimacy and the image of his children Killed by his father, Breton.
This past Monday a judge in Barcelona resolved, at least for the moment, the matter and gave the green light to the book by not agreeing on the precautionary suspension of its distribution. The head of the Court of Instruction number 39 of the Catalan capital decided that it does not have sufficient data, having not had access to the full content of the workto be able to assess whether or not there is that illegitimate interference in the aforementioned rights of minors.
Therefore, he was not able to determine to what gender he belongs to and is a transcendental issue, ”said Judge Diego Martínez – to be able to”Weigh the limits of freedom of expression in relation to the honorary rights “of the victims. That is what it is, clarifying that you should put ahead.
Where you usually go to the judicial world to address a crossroads of this class (and of any other, really) is to the jurisprudence. What has been establishing the Constitutional Court (TC) in their sentences.
The truth is that the TC has almost always endorsed the right to Freedom of information and/or expression against the protection of the right to honor. Since, although ethically it can be very reproachable, the precedents at the legal level have tended to prioritize the right to inform and be informed against the protection of the honor of others.
An example of this is the judgment of the Court of Guarantees 216/2006, of July 3. In it he dismissed the appeal for the former socialist minister José Luis Corcuera against a press post that reported a villa that would have received as a prebend from an architect who was granted the construction of numerous police stations when he was responsible for the interior and, on the other hand, in which he would have as a testaferro a union friend.
The main conclusions are two. The first, that public or public recognition characters must support major interference in their right to honor than the rest of citizens.
The Court, which is now presided by Cándido Conde-Pumpid They must “support criticism or revelations although they hurt or restless”. Whether “especially annoying or hurtful” or even “inopportune or excessive”.
The limit with respect to these latest situations that must be allowed in a general way is affect dignity and public opinion about honesty of the appellant. “At the same time, an interference would not be illegitimate to be protected by freedom of expression, a right that” has a very broad field of action, which is delimited only by the absence of Intrinsically vexatious expressions“
The line that should not be transferred, in this sense, sets our jurisprudence, is the dissemination of facts that “They are simple rumors, inventions or insinuations lacking foundation”to formally injurious and unnecessary expressions for the message that you want to disseminate, in which its issuer externalizes your personal contempt or animosity with respect to the offended. “
On the other hand, the annoying or hurtful nature of an opinion or information does not constitute an illegitimate interference in their right to honor, provided that they are not expressions insulting messages, defamant insidies or vexations that Objectively cause discredit of the person to whom they refer.
The right to honor (18.1 CE) what it protects is Not being “scratching or humiliated before yourself or others” And this is, “like all constitutional rights”, limited by the rights to inform and express themselves freely.
That is, it imposes the right to express themselves freely and, at the same time, prohibits that no one refers to a person insulting, injurious, or unjustifiably against their reputation. In short, in the words of the TC, “making it detract from the opinion of others.”
The second conclusion is that in cases like this, even if the content is uncertain, If the information is truthful, the right to information is prioritized above honor. On this requirement that speaks of the truth of information, the Constitutional has repeatedly insisted that it does not coincide with the circumstance that what is published or disseminated is true since they can be wrong. The determining point is whether it acted with the reasonable diligence in terms of previously check the facts that you assumed to be able to communicate them as information.