Article 208 Spanish Criminal Code: Insult

Article 208 of the Spanish Criminal Code defines insult as an action or expression that injures the dignity of another, damaging that person’s reputation or attacking their self-esteem. Its second and third paragraphs then confine the offence sharply: only insults which by their nature, effects and circumstances are regarded in public opinion as serious constitute an offence, and insults consisting in the imputation of facts are not serious unless made with knowledge of their falsity or with reckless disregard for the truth. Most exchanges that clients believe to be criminal fall outside the article.

Wording of Article 208 of the Spanish Criminal Code

Elements of the offence

1. An action or expression injuring dignity, damaging reputation or attacking self-esteem.
2. Seriousness assessed objectively by reference to nature, effects and circumstances, and to what public opinion regards as serious, not to the complainant’s sensitivity.
3. Where the insult consists in the imputation of facts, knowledge of their falsity or reckless disregard for the truth.
4. A complaint by the person offended under article 215, save where the offence is directed at a public official in the exercise of his functions.

Defence strategy

The seriousness threshold. This resolves the majority of cases. Words spoken in the course of an argument, in traffic, between neighbours or during a separation are assessed in their context, including the previous relationship and the reciprocity of the exchange. Coarse language exchanged in a heated dispute is not, in public opinion, serious insult, and the courts say so regularly. The defence establishes the context rather than disputing the words.

Freedom of expression and matters of public interest. Where the expression concerned a matter of public interest, the conduct of a business or the performance of a public function, the constitutional protection of freedom of expression and of information is engaged, and criticism, however sharp, is not insult. The defence identifies the public interest served and the factual basis of the criticism, since a critical opinion resting on a true factual basis is protected.

Imputation of facts and the third paragraph. Where the insult consists in stating facts, it is not serious unless made with knowledge of falsity or reckless disregard. This is frequently overlooked. Statements about a person’s conduct, made in good faith on the basis of what the accused understood to be true, fall outside the offence, and the enquiries made before speaking are the material evidence.

The complaint, limitation and the family context. Prosecution requires a complaint by the person offended, and the limitation period is one year under article 131. Both points are examined first. Where the exchange occurred within the family circle, the applicable provision is article 173.4, which does not require a complaint in the cases it specifies, and the defence strategy differs accordingly.

• Article 205: calumny
• Article 173: degrading treatment
• Spanish Criminal Code by article
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.