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
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idealist707, Thanks for posting that. He had a severe allergy to horses.
The word literally means “licks chickens” or “chicken licker.” Think of a word for a male chicken, and you’ll get it. But the word’s “real” or figurative meaning is more like “a**hole” or “jerk” than “c***sucker.”
Woosty,
Everyone needs to take a pill and chill out. We need a few less a–holes! 🙂
FYI
http://www.nytimes.com/2012/03/04/world/middleeast/bearing-witness-in-syria-a-war-reporters-last-days.html?pagewanted=1&_r=1&ref=world
Re Anthony Shaddad’s last journey, by his photographer collegue, Tyler Hicks.
Woosty’s still a Cat 1, March 4, 2012 at 5:05 pm
he may not be the only asshole.
The bigger crime is the amount of harm that people seem capable of leveling at each other for even smaller infractions…and that we have to actually litigate about it.
———–
Woosty,
All good points… ( 🙂 to “he may not be the only asshole” )
About “the bigger crime…”, we’ve reached an all-time low, it would seem…
well, I must say, that I still have a problem with the t-shirt thingy in LIGHT of that written law. Doesn’t the law point exactly to that sort of public discourse when it says ‘…the right to honour, to privacy, to personal reputation and to the protection of youth and childhood’.
I’m not against t-shirt opinionating but who knows ( beyond what the scenario tells us) what exactly had transpired between the ex and the woman and her boyfriend and also any kids and friends and blah blah blah. If the divorce was recent there is a potential for a lot of stigma and social and emotional damage, he may not be the only asshole.
The bigger crime is the amount of harm that people seem capable of leveling at each other for even smaller infractions…and that we have to actually litigate about it.
AN,
The easiest one in the US is to say someone has herpes or some other STD…. Or to say a woman is unchaste…. Used to be a big deal….
AY,
Thanks for the information, clarification, correction… Admitting ignorance is, hopefully, a virtue… This is the first that I’ve heard of “dignitary crimes” and had no idea that that’s what A. Knox’s parents have been charged with… But in the AK case, they’re calling a judge “a criminal” whichsounds like it might be construed as defamation…
Now, in my opinion, the following might be defamatory:
A woman wears a t-shirt of her husband with his picture on it and the caption: “My ex-husband is a liar”… or, “My ex-husband is a liar, I mean… lawyer.”
I will write a book on my life’s experiences. Thank you for allowing my sister Margaret Dick post here.
AN,
Not to appear to be stalking you…. But….to answer your question to Gene…..based upon the laws in other countries…. It is a crime to call people of some status assholes….. They are called dignitaries crimes…. That is what Amanda Knoxs parents are being charged with in Italy….. They defamed the prosecutor by calling him stupid, a criminal and other names….. Here in the US they use homeland security and hide you…. Only kidding….about here… Or may be not….
“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.” Gene H.
“Did the Spanish Court err in this holding and infringe upon free speech?” -Gene H
My 2-cents, as a non-lawyer: “protected opinion” and 🙂 to the rest of the first quote…
Yes, regarding “error” on the part of the Spanish Court.
Now, where do I get one of those t-shirts… 😉
(Thanks for the 10:14 am comment, mespo. What happened to that judge? Is he still on the bench?)
AY,AY:
That was so nice I had to say your name twice,:=)
Gene,
Thank you for including “nanny nanny boo boo” in a post! It made my Sunday!
Gene H.
“It was merely to point out the seeming absurdity of the verdict in light of the evidence applied to the charge and apply a bit of critical scrutiny.”
That was something I did not understand was the purpose.
I thought it was culture corrupting the justice system—-or maybe it was.
Will think about it and see if it will be clearer. SMILE.
Legal system is absurd. It is amazing it has survived for as long as it has survived with humans not being like Jesus is.
id707,
“As for justice being corrupted by such influence, I would hope you also consider the USA system as being so, if not as much. At least we have discovered the codification of restrictions in Spain. How easy is that to find in the States?”
Easy enough. The U.S. judicial system has a number of problems including examples of gender biases that run both ways, both rational and irrational. You’ll find over time that I’m equally critical of all three branches of our government. Actually I’m critical of all governments, not just ours. They all suck, just in different ways just as most (but not all) of them have their strong points. The purpose of this article wasn’t to finger point at Spain and give them some nanny nanny boo boo. There are some very admirable traits to the Spanish legal system and its practitioners just as there are for the American system. It was merely to point out the seeming absurdity of the verdict in light of the evidence applied to the charge and apply a bit of critical scrutiny.