CASE COMMENTARY · SPANISH SUPREME COURTCriminal libel in a trade publication: the three-part test and the duty to verify sources
DECISION
Judgment of the Second Chamber (2026)
COURT
Spanish Supreme Court, Criminal Chamber
IDENTIFICATION
Offence of criminal libel, Article 205 of the Criminal Code
OUTCOME
Appeal dismissed, conviction and costs upheld
A journalist specialising in maritime affairs published, on a trade portal, an article attributing to a businessman and his son participation in a fraud committed in 1997 during the privatisation of publicly owned Galician shipyards, with profits of several hundred million pesetas, and included a photograph of the person concerned. The journalist himself acknowledged that the complainants had never been investigated or convicted in relation to those facts. The Spanish Supreme Court has upheld the conviction for criminal libel.
The ruling is a textbook application of the three-part constitutional test that marks the boundary between freedom of information and the criminal protection of reputation.
The facts and the procedural route
- Article published on a portal specialising in maritime affairs
- Allegation of participation in a 1997 fraud during a shipyard privatisation
- Reference to profits of several hundred million pesetas
- Inclusion of a photograph of the person concerned
- The complainants had never been investigated or convicted over those facts
- Sources relied on: a newspaper article from sixteen years earlier and unidentified conversations
- The journalist died while the appeal was pending and his daughter continued the proceedings
- The Supreme Court dismisses the appeal on all grounds
The legal keys
- Distinction between freedom of expression, covering opinions, and freedom of information, covering facts
- Reporting facts requires diligence in seeking and verifying sources
- Three-part test: truthfulness, public relevance and proportionality
- Article 205 requires a specific and precise allegation of criminal conduct
- Reckless disregard for the truth where solid sources were not consulted
- Damages of 20,000 euros under Article 9(3) of Organic Law 1/1982
THE DOCTRINEWhat the court holds
Opinion and fact: two distinct freedoms
The judgment starts from a distinction that still causes confusion in practice. Freedom of expression protects value judgments, opinions and criticism, which by their nature cannot be proved true and enjoy a very wide margin, even where they are irritating or wounding. Freedom of information protects the communication of facts, and precisely because facts are verifiable, its protection is conditioned on an additional requirement: diligence in seeking and verifying sources.
The three-part constitutional test
The court applies the classic three-step scheme. First, truthfulness, which does not require objective truth but reasonable diligence in checking: the journalist must have verified with solid sources before publishing. Second, the public relevance of the matter and the public character of the person concerned. Third, proportionality in the form of the communication, which excludes unnecessarily degrading expressions. The article examined failed at the first of those steps.
Verifying sources and reckless disregard for the truth
The sources relied on were a newspaper article from sixteen years earlier and conversations with unidentified people in the sector. The court holds that such material does not satisfy the minimum diligence required where an identified person is accused of committing fraud. To this is added a decisive fact: the author himself acknowledged that the complainants had never been investigated or convicted. Publishing the allegation with that knowledge constitutes the reckless disregard for the truth that Article 205 requires.
A specific and precise allegation
The offence of criminal libel requires the imputation of a crime with knowledge of its falsity or reckless disregard for the truth, and case law has clarified that the imputation must be specific and precise, not a generic insinuation or a suspicion. Attributing participation in a particular fraud, situated in time, referring to an identified transaction and accompanied by a photograph of the person concerned amply meets that requirement of specificity.
Damages for non-pecuniary harm
Damages were set at 20,000 euros for the two complainants under Article 9(3) of Organic Law 1/1982 on the civil protection of the rights to honour, to personal and family privacy and to one’s own image. The Supreme Court rejects the ground alleging arbitrariness in that assessment and also upholds the order for costs against the appellant under Article 901 of the Criminal Procedure Act.
THE FIRM’S READINGWhat it means in practice
For the outlet and the journalist. A defence against a libel complaint is built before publication, not afterwards. Keeping a documentary trail of the verification, identifying sources even where they are protected in the published piece, and documenting attempts to obtain the subject’s response are the steps that establish diligence. An article from sixteen years ago is not verification.
For the person affected. Acting quickly and documenting the dissemination is advisable: dated captures, the portal’s reach, reproduction on social media and professional impact. Quantifying non-pecuniary harm under Article 9(3) takes account of dissemination and of the benefit obtained by the person causing the harm, matters that must be established.
On the criminal and civil routes. Not every injury to reputation requires the criminal route. Where there is no specific allegation of a crime or no reckless disregard for the truth, the appropriate route is the civil one under Organic Law 1/1982. Bringing a complaint without those elements leads to dismissal and may generate costs.
FREQUENTLY ASKED QUESTIONSFrequently asked questions
What is the difference between criminal libel and insult?
Criminal libel under Article 205 consists in imputing a crime with knowledge of its falsity or reckless disregard for the truth. Insult under Article 208 harms dignity by damaging reputation or self-esteem, without any need to impute a specific crime.
What is the three-part constitutional test?
It is the scheme for verifying whether information is protected by freedom of information: truthfulness, understood as diligence in verifying sources, public relevance of the matter and proportionality in the form of the communication.
Does truthfulness require the information to be objectively correct?
No. It requires reasonable diligence in checking before publication. Information that turns out to be inaccurate may still be protected if it was verified with solid sources; accurate information may not be protected if it was published without any verification.
How are damages for non-pecuniary harm calculated?
Under Article 9(3) of Organic Law 1/1982, having regard to the circumstances of the case, the gravity of the harm actually caused, the dissemination or audience of the medium and the benefit obtained by the person causing the harm.
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Commentary prepared by the SCJE team from public sources on the decision. Its content is summarised for informational purposes, without full reproduction. It does not constitute individual legal advice. Source consulted: Tirant lo Blanch, actualidad jurídica.
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