Slander and Defamation (Arts. 205-216 Spanish Penal Code): Elements, Truth Defence and Legal Action

Defamation and Insult (Calumnia and Injuria): Legal Framework

Offences against honour are governed by Articles 205–216 of the Código Penal (Spanish Criminal Code). These are private offences (Art. 215 CP): they can only be prosecuted by the victim or their legal representative, not ex officio by the Ministerio Fiscal (Public Prosecutor), except where the aggrieved party is a public official acting in the exercise of their duties (Art. 215.1 CP, in fine).

Calumnia: False Accusation of a Crime (Arts. 205–207 CP)

Definition

Calumnia consists of imputing a criminal offence to another person with knowledge of its falsity or with reckless disregard for the truth. The constituent elements are:

1. Imputation of a specific criminal act (generic statements such as "they are a thief" are insufficient, a particular offence must be attributed)
2. Falsity: the person making the imputation knows it is false, or acts with reckless disregard for the truth
3. Publicity (not required for the basic offence, but constitutes an aggravating circumstance; Art. 206 CP)

Penalty: a fine of 12 to 24 months. Where publicity is involved (Art. 206 CP): imprisonment of 6 months to 2 years, or a fine of 12 to 24 months.

Exceptio Veritatis (Art. 207 CP)

A person accused of calumnia is exempt from criminal liability if they prove the truth of the criminal act imputed. If the imputation was true (i.e., the subject did commit the offence), no calumnia exists.

Injuria: Insult and Defamation (Arts. 208–210 CP)

Definition

Injuria consists of any act or expression that damages a person's dignity, undermines their reputation, or attacks their self-esteem. Unlike calumnia, injuria may refer to non-criminal conduct or expressions of opinion.

Serious injuria (Art. 208.2 CP): that which, by its nature, effects, and circumstances, is regarded as serious in the eyes of the public. Penalty: a fine of 6 to 14 months.

Minor injuria: treated as a civil infraction rather than a criminal offence (the reform introduced by Ley Orgánica 1/2015 decriminalised minor injurias).

With publicity: a fine of 14 to 22 months.

Limited Exceptio Veritatis (Art. 210 CP)

In injuria cases, the exceptio veritatis applies only where the imputations are directed against public officials in connection with the exercise of their public duties. Where private individuals are concerned, proof of the truth of the imputation does not exempt from liability if the matter was not of public interest.

Freedom of Expression vs. the Right to Honour

The boundary between the legitimate exercise of freedom of expression (Art. 20.1.a CE ( Spanish Constitution) and criminal injuria or calumnia is one of the most contested areas in this field. The TC (Tribunal Constitucional ) Spanish Constitutional Court) has established the following principles:

• Political and journalistic criticism: afforded very broad protection where it concerns public figures on matters of general interest (STC 85/1992)
• Value judgements: protected even when harsh, hurtful, or unpleasant, unless they constitute gratuitous insults without any factual basis (ECtHR: Oberschlick v. Austria)
• Imputation of false facts: not protected either by freedom of expression or by the right to information (Art. 20.1.d CE requires truthfulness)

Proportionality between the expression used and the communicative purpose pursued is a decisive factor.

Calumnia and Injuria on Social Media

Social media raises specific legal questions in this area:

• Publicity: the TS (Tribunal Supremo ( Spanish Supreme Court) holds that any publication accessible to third parties satisfies the publicity requirement under Arts. 206/209 CP ) it is sufficient that the content is visible to more than one person
• Anonymity: Art. 588 ter LEC (Ley de Enjuiciamiento Civil; Spanish Code of Civil Procedure) allows a criminal court to order the platform to identify an anonymous user
• Retweets and shares: a person who retweets or shares a defamatory publication may incur liability where intent (dolo) is established (STS 396/2018)
• Limitation period: time begins to run from the date of publication of the injuria, not from the date on which the victim becomes aware of it

Procedure: Private Criminal Action

Offences of calumnia and injuria are prosecuted exclusively at the instance of the aggrieved party (Art. 215.1 CP):

1. Prior Conciliation (Abolished since 2022)

The 2022 reform of the Ley de Jurisdicción Voluntaria (Law on Voluntary Jurisdiction) abolished the requirement of prior mandatory conciliation as a procedural prerequisite.

2. Querella: Private Criminal Complaint

The victim files a querella (formal private criminal complaint) before the Tribunal de Instancia de Instrucción (Examining Magistrate's Court). It must include:

• The constitutive facts (the specific expression or act being attributed)
• Supporting evidence (screenshots, recordings, witness statements)
• Identification details of the respondent (required for identification purposes)

3. Pardon by the Aggrieved Party (Art. 215.3 CP)

A pardon granted by the aggrieved party extinguishes both the criminal action and any penalty imposed. Unlike other offences, in cases of calumnia and injuria the pardon takes effect even after a final judgment has been handed down.

Civil Liability for Unlawful Interference (LO 1/1982)

Alongside the criminal action, the victim may bring a civil claim for unlawful interference with the right to honour under Ley Orgánica 1/1982, of 5 May (the Spanish Organic Law on the Civil Protection of the Right to Honour, Personal and Family Privacy, and Self-Image). This civil action:

• Is brought before the civil courts (Tribunal de Instancia; Court of First Instance)
• Limitation period: 4 years (Art. 9.5 LO 1/1982)
• Does not require intent (dolo): it is sufficient that the interference is unlawful
• Allows the claimant to seek compensation for moral damages, cessation of the offending conduct, and rectification

The STS (Sala 1ª; First Chamber of the Supreme Court) of 19 October 2021 established, in a unifying ruling, that pursuing both actions simultaneously (criminal and civil) is permissible, but that the civil damages award may not overlap with the criminal fine to the extent that the same harm has already been compensated.

Conclusion

The offences of calumnia and injuria are legal instruments that are increasingly invoked in the context of social media and cyberbullying. The key defensive strategy lies in relying on the exceptio veritatis in calumnia cases, and in demonstrating public interest or a factual basis in injuria cases. The lawyer must carefully assess whether to pursue criminal or civil proceedings ( or both ) depending on the harm suffered and the evidence available.

Lexiel enables you to search case law from the TS and TC on freedom of expression versus the right to honour, and to draft querellas or civil claims with verified legal citations.