In our legal system there is the right to freedom of expression ( article 20 CE ) and on the other hand, the right to honor and dignity ( article 18 CE ), both rights protected by the Constitution.
These rights cause problems because freedom of expression can sometimes violate a person's right to honour and dignity. These are conflicting rights and both rights must be weighed to determine which prevails.
When weighing up rights, many variables must be taken into account. Criticising a public figure is not the same as criticising an anonymous person, or expressing an opinion on a gambling data brazil certain matter in front of the press is not the same as expressing an opinion at a meeting of friends, since the scope of these expressions is different.
The jurisprudence of the Constitutional Court (STC 22 July 2015, STC 41/2011 of 11 April or STC 50/2010 of 4 October, among others) indicates that the dimension of the right to freedom of expression is:
(as a guarantee for “the formation and existence of a free public opinion”, which makes it “one of the pillars of a free and democratic society.
Freedom of expression also includes the freedom to criticise , even if it is annoying or provocative. Both the Constitutional Court and the European Court of Human Rights indicate that when freedom of expression is exercised by a political representative, its scope of protection is much greater (ECHR of 23 April 1992, Castells v. Spain , § 42).
It is also true that it is not an absolute right, it has limits. For example, the right to insult is not recognized, so not all expression is protected by this right.
Limits to freedom of expression must be weighed. The courts must assess, before any other question arises, and always take into account the circumstances of the specific case, whether the conduct constitutes a lawful exercise of the fundamental right to freedom of expression and is justified by the predominant value of freedom of expression.
Some examples where the limits to freedom of expression can be seen:
In the ruling of the National Court of 5 December 2008, the Court states that the facts under trial are not protected by the right to freedom of expression (this is a case where photographs of the King and Queen were burned during a demonstration), and is based on the doctrine of the Constitutional Court that in order to decide which right prevails, the expressions or actions must be analysed and it must be verified whether they were insulting and unnecessary to express public opinion. The Court indicates that the action carried out by the accused is unnecessary and exceeds the limits of freedom of expression.
Another ruling that follows the same line of jurisprudence, the ruling of the National Court of 18 May 2009, deals with a similar case where two young people burn the figure of the King. In its second legal basis it indicates that the action carried out by the accused is not protected by the right to freedom of expression or the right to ideological freedom since the burning of the figure of the King has no relation to the right to express and form a public opinion. There has been an overstepping of the law.