Social networks change hoax lawsuits and blur the line between journalists and citizens

The Constitutional Court explicitly stated last february. “Users can come to play a role very close to the one that journalists have been developing until now in traditional media.” The magistrates said this in the sentence that confirmed that the journalist Antonio Naranjo had to compensate the journalist Máximo Pradera with 5,000 euros for falsely spreading on his Twitter account that he had been physically assaulted by Pradera at a time of constant public confrontations between the two in the media in which they participated.

Naranjo, who at the time of the events shared a gathering with Pradera in the afternoons of Onda Cero, argued, among other things, before the court of guarantees that his freedom of expression should prevail, which was addressed only to his followers and not to the general public. and that he limited himself to issuing “his opinion on the facts.” He expressed a feeling, Naranjo said in his appeal, and truthfulness could not be demanded of his tweets “given that a feeling is impossible to lend itself to a demonstration of accuracy.”

The Constitutional rejected his appeal because it attributed to Pradera a physical attack that had not existed and therefore endorsed the compensation of 5,000 euros that the Madrid Court had established through civil law. But in its resolution, it also studied the scope that a citizen can have through social networks and concluded that the new communicative scenario has reduced distances: “It is necessary to take into account that the use of digital tools turns its users into creators. of content, issuers, diffusers and players of that content”, they said in this resolution.

For the Constitutional Court, with Mary Louise Balaguer As a speaker, users “can come to play a role very close to the one that journalists have been developing until now in the traditional media”. Media that “can also use”, and use, social networks to spread their content. And he recalls that journalists can also use “personal profiles in which they continue to be perceived as journalists by their followers, and by other users.”

For the Constitutional Court, this makes it a problem to differentiate between who makes use of freedom of expression and who makes use of the right to information, with the legal scales that apply to each one. “Nor does it facilitate the disaggregation between these two rights, freedom of expression and the right to information”, says the Constitutional, that the Spanish system “clearly differentiates” between the two, not as in the Council of Europe or the European Union, “which is They refer to a generic freedom of expression that takes the form of freedom of opinion, freedom to transmit information and freedom to receive information”.

From a newspaper to a phone with internet

David Bravo was the lawyer who defended Máximo Pradera in this lawsuit that reached the Constitutional Court, after also successfully starring in the first conviction to ‘tweet’ a judicial resolution for defamation poured, precisely, on Twitter. He understands that this sentence of the dispute between journalists did not change what the Law already said, but it did analyze for the first time a novel case for the judges. The bar of veracity has been raised but, he explains, because of the broadcasting capacity that the internet allows today to everyone with access to a connection.

“The Law has never stated that this requirement of veracity was required only of journalists. But before the appearance of social networks, the truth is that the voice that fundamentally reached the public was theirs, and now, however, that of any person who has an internet connection and has a certain reach can reach it”, he explains. in statements to elDiario.es. This Constitutional ruling, he explains, “does not introduce any novelty to what the Law already said, which did not make that distinction, reality did. They were only those who had access to the media and now they don’t. Now you can say something, not true or truthful, a citizen with an internet connection and a presence on social networks.

The requirement of veracity does not imply that one has to be condemned for something that does not exactly correspond to reality. The doctrine explained at length by the Constitutional defends that the journalist cannot be infallible but does require him to be diligent in checking the information he publishes. For this reason, he can be sentenced if, in addition to transmitting false data, he does so knowingly and without doing the slightest check so as not to spread, for example, a hoax that ends up harming another person. The Constitutional has already left in writing that a social network can have as much or more diffusion than a traditional means of communication. “This supposes an exponentially greater capacity to influence public opinion than that of the traditional media, which, moreover, also use social networks to disseminate their content, and even to manage the times and the capacity for impact. of certain information. This, the court of guarantees also concluded, could entail “a greater risk of violation of the personality rights of third parties.”

Bravo explains that this sentence decided to get to the bottom of the matter, although according to his criteria the legislation would have allowed the appeal to be dismissed, and what he did was leave in writing that “with the birth of social networks and the potential amplifying expansion they give to the message , this canon of veracity is also required of any person who says something on social networks that does not comply with that canon”. Before that sentence, he understands, the answer was the same: “It was obvious that Antonio Naranjo, who was a journalist, had no right and never had it before or after the Constitutional Court to invent an attack that had never happened, and this would have been applicable and applied before the sentence being a journalist or not”, he explains.

Bravo adds that, in his experience as a lawyer, judges have never had problems adapting their opinions to technology or, in this case, to social networks where a person’s honor can be violated, as happened in the case of Luis Pineda, leader of Ausbanc, and the president of Facua Rubén Sánchez. Recently the Supreme Court had to study how far the adaptation of a criminal sentence to the reality of social networks could go: when it sentenced a ‘youtuber’ to be away from this social network for five years for humiliating a homeless person, precisely, in their YouTube videos.

Journalists, “influential” and freedom of expression

In lawsuits related to freedom of expression or the veracity of information, judges always explain that a person related to the world of communication can be required to do something more when studying whether what he has said was inaccurate or directly a lie. . The emergence of social networks and their ability to spread without the need to work for any media or even practice a profession or be a public figure of some kind has changed the framework for all citizens.

This is reflected in a judicial process that is not yet final but that already has two convictions. the of Alfonso ‘Fonsi’ Loaiza, who in his Twitter account of 175,000 followers defines himself as a “media doctor” and who has been sentenced to pay 2,100 euros for falsely accusing the Madrid Municipal Police of having “murdered” the mantero Mame Mbaye in 2018 in Lavapies. A court considered him guilty of a crime of serious insult to this police force, the Provincial Court has confirmed the opinion and now everything is in the hands of the Supreme Court and its criminal chamber. The mantero had died after suffering a heart attack after running to escape a police raid. The shortcut of turning that episode into a murder and the dissemination of that thesis before thousands of his followers motivated the sentence.

The last ruling of the territorial court expressly cites what the Constitutional Court said in the case of Naranjo and Pradera, after Loaiza alleged that he is not a professional journalist and that at that time, moreover, he was a “precarious mileurista writer.” The judges agreed to study the case “suppressing the reference to the defendant’s profession” and analyze whether that is why his messages cease to be a crime. And they concluded that no, because he openly accused the Municipal Police of having murdered Mbaye when it was not true.

They remember what the Constitutional Court already said in the case of the conflict between two journalists: “The difference that the appellant intends to establish between who is a journalist and who is not, is blurred when the freedoms of communication were exercised through the tools that facilitates internet”, they say, and add that in the case of Loaiza “he has studies in journalism”, as he himself has acknowledged while alleging that it was a criticism of the racism of police actions. “Murder is to kill someone with treachery, cruelty or for a reward, and that and no other was the behavior that the appellant imputed to the local police in Madrid, having murdered a mantero without papers, being able to have achieved the purpose that is said claimed without need for such a very serious accusation”, answer the judges.

The limits of his freedom of expression were analyzed in the first instance sentence. “It is not a question of a mere citizen who contacts his friends, or a small businessman or merchant who does so with his workers or clients, in a personal sphere of 200 or 300 people, but of someone who spreads his messages to thousands of people. people”, explained the first sentence of the case. The judges spoke of “the so-called influential, known and followed by broad spectrum of the population, especially the youngest, in preference to the traditional media.”

The “influential” people in social networks and their activity, said the judges, “cannot be left out of a regulation, which is still meager, includes responsibility for their own acts. It cannot be considered a territory outside the law.” The Constitutional also invites to analyze the diffusion that a supposedly insulting message has had. “It is not the same whether such a message has been read by one person or by a million, because the public image of the holder of the right to honor, and the perception of that image by third parties, have not been affected with the same intensity in one person. and another case”.