Submitted by Gene Howington, Guest Blogger

Is an opinion defamation?  Is it defamation if it is worn on a t-shirt?  Is it defamation if you post a picture of yourself wearing said t-shirt on Facebook?  Is the manufacturer liable for civil damages a purchaser of their t-shirt incurred since they wrote the content later found defamatory?  An unusual case in Spain raises these questions and more.

A woman in Madrid, Spain is certainly perplexed by a court ruling that found her guilty of a “dignitary tort”. She was sentenced and initially ordered to pay 2,000 euros ( ≈ $2640) in damages and a 240 euro-fine ( ≈ $317), but the court later reduced the damages on appeal to 1,000 euros ( ≈ $1320) and eight days of house arrest in lieu of the fine.  Adding insult to injury, the claimant – her ex-husband – asked that the damages be paid in installments to supplement his 700 euro per month income ( ≈ $924 per month).

This is a cause of action here is one we do not have an exact analogy for in the United States, but defamation is close.  Historically, the primary dignitary torts recognized in English and subsequently American law are battery, assault, and false imprisonment.  These torts still exist under modern American tort law, but they also have criminal law counterparts because they contain elements of violence.  Under modern jurisprudence, the term dignitary torts is more closely associated with defamation (slander and libel), false light, intentional infliction of emotional distress, invasion of privacy, and alienation of affections. In some jurisdictions, the use of the phrase “dignitary torts” is limited to those torts which do not require the threat of or actual physical injury. What was required in the present Spanish case was that the statement in question insulted someone’s dignity and effectively damaged that person’s reputation.

What did this woman do to merit this punishment?  She posted a picture of herself to Facebook wearing a t-shirt with a slogan on it.  Her boyfriend bought it for her while they were on vacation.  It’s the kind of “gag t-shirt” commonly sold around the world.  What did the shirt say that was so offensive?  I’ll tell you below the fold.

The woman, who had been divorced for several years, was wearing a t-shirt that said, “Mi exmarido es gilipollas”.  Just like the tort in question has no exact English analog, neither does this phrase, but it roughly translates as “My ex-husband is an asshole”.  The reason for the lack of precise translation has to do with the insulting word “gilipollas”.  My Spanish is weak to the point of being non-existent, but according to The Register, “[t]he word gilipollas is a top-notch Spanish insult. It doesn’t have an exact translation in English, but conveys the sense of an obnoxious arsehole with an added touch of ‘self-aware’ stupidity in the gilipollas in question.”

What is curious about this whole scenario is that the statement itself seems to be opinion.  Not only is opinion protected free speech under U.S. law, it is protected under Spanish law as well.  Article 20, found in the First Section, Title I, Chapter 2 of the Spanish Constitution “recognizes the ‘right to express and freely disseminate thoughts, ideas and opinions through spoken word, text or any other means of communication’”.  Freedom Of Speech In American & Spanish Law: A Comparative Perspective by Alfredo Coll (2010).

In fact, as a matter of comparative law, the Spanish Constitution’s Article 20 protection of free speech is quite robust and explicit compared to our own 1st Amendment.

Article 20
1.The following rights are recognised and protected:
a) the right to freely express and disseminate thoughts, ideas and opinions through words, in writing or by any other means of communication;
b) the right to literary, artistic, scientific and technical production and creation;
c) the right to academic freedom;
d) the right to freely communicate or receive accurate information by any means of dissemination whatsoever. The law shall regulate the right to invoke personal conscience and professional secrecy in the exercise of these freedoms.
2. The exercise of these rights may not be restricted by any form of prior censorship.
3. The law shall regulate the organisation and parliamentary con-trol of the social communications media under the control of the State or any public agency and shall guarantee access to such media to the main social and political groups, respecting the pluralism of society and of the various languages of Spain.
4. These freedoms are limited by respect for the rights recognized in this Title, by the legal provisions implementing it, and especially by the right to honour, to privacy, to personal reputation and to the protection of youth and childhood.
5. The confiscation of publications and recordings and other information media may only be carried out by means of a court order.” Spanish Constitution of 1978,  First Section, Title I, Chapter 2, Article 20 [emphasis added]

Compared to . . .

Amendment 1 – Freedom of Religion, Press, Expression.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  U.S. Constitution, 1st Amendment.

While there is American jurisprudence that addresses many of the items specifically mentioned in the Spanish Constitution, the relevant point of similarity is that both legal systems recognize opinion as protected free speech.

Is calling your ex-husband (or ex-wife) an asshole – even the fancier more detailed insult of gilipollas – an opinion and protected or is it actually defamation?

I’m pretty sure that not only is it protected opinion and should be recognized as such, but it is probably a common and generally socially expected opinion among divorcees of either gender.

Did the Spanish Court err in this holding and infringe upon free speech?

What do you think?

Source(s): Huffington Post, The Register, Yahoo! Finance Currency Converter, Freedom Of Speech In American & Spanish Law: A Comparative Perspective by Alfredo Coll (2010) (.pdf), The Spanish Constitution of 1978 (.pdf, English translation)

~Submitted by Gene Howington, Guest Blogger