The fine line between freedom of expression and defamation

On October 29, 2011, a television program called La noria aired an interview with Rosalía García, mother of Javier García Marín, "El Cuco," a young man charged with involvement in the violent death of Marta del Castillo, a 17-year-old from Seville whose body has never been found. The case caused a great deal of social commotion, not least because of the changing versions of events provided by her convicted killer, Miguel Carcaño, who led the police on a wild goose chase for months. His alleged associates in the crime - including El Cuco - were acquitted in a controversial ruling.

As in practically all television programs of this nature, the talk show paid for the interview - around 10,000 euros in this particular case. An outraged blogger named Pablo Herreros began an online campaign to get La noria's advertisers to take their money elsewhere. In barely two weeks, the show was left without sponsors, which had included major companies such as El Corte Inglés, Bayer, Nestlé, Audi and Mercedes-Benz. After struggling to keep La noria alive without its 3.7 million euros' worth of ads, Telecinco finally axed it. The private station's image was seriously damaged as well.

Telecinco considered that the online campaign constituted a case of threats and coercion and brought legal action against Herreros. The station argued that his actions exceeded the limits of legitimate criticism by warning advertisers that if they didn't pull their ads, people would boycott their products.

Telecinco claimed that the campaign constituted threats and coercion

But is it legitimate to claim compensation for damages to one's finances and prestige? Are boycotts protected in a democratic society? Is it a tool for protest that should be protected by law? And where is the line between criticism and outright threat?

Experts feel that initiatives like Herreros' fall within the boundaries of freedom of expression. Campaigns of this nature, however, must not be based on unfounded criticism or be radically false, warns Joan Barata, a professor of communications law at Blanquerna-Ramón Llull University in Barcelona. Barata thinks that taking this issue to penal territory is excessive. "There has been an exercise in activism on the world wide web, something which is accepted in any democratic society," he says.

What this action is doing is denouncing an attitude that does not uphold corporate social responsibility guidelines. "This is quite common in any democracy," explains Barata. "The right to criticize a large corporation is like the right to criticize political power."

Freedom of expression is one of the basic pillars of democratic society"

Miguel Ángel Presno, a professor of constitutional law at Oviedo University, thinks along the same lines. He considers that a boycott forms part of a critical message, and that recommending not buying certain products is included in the market of ideas. Presno categorically asserts that fomenting boycotts is legal.

"Freedom of expression is one of the basic pillars of democratic societies; it not only protects the substance of ideas but also the way in which they are transmitted. Opinions included in a blog are protected," he says.

This expert feels that protection extends to ideas viewed as shocking, worrisome or offensive by sections of society. "When the criticized subject has public relevance, like a well-known media outlet such as Telecinco, the level of protection for criticism should be higher," says Presno.

It would be unfair competition if one group started a boycott against a rival

Yet not all boycotts are protected by freedom of expression laws. It depends on the angle and its organizers. Professor Joan Barata mentions a third limit besides unfounded criticism or outright defamation: it would be unfair competition if one economic group started a boycott campaign against a rival. Journalist Federico Jiménez Losantos' initiative against the daily Abc is a case in point.

In 2006, the radio host used his microphones at the Cope network to begin a campaign against the newspaper because of its editorial line (after working there for a decade). His call to Abc subscribers to stop buying the paper was so successful that its owner, the Vocento Group, sued the journalist and his employer on grounds that his denigration campaign infringed competition legislation.

In Barata's view, Losantos' campaign was clearly anti-competitive: it was one company against another in an evident display of disloyalty. There was another angle to the case, too. "There was an attack against the honor of then-Abc director José Antonio Zarzalejos. Freedom of expression does not extend to insults."

Attacks against dignity

- Federico Jiménez Losantos. In 2006, the conservative newspaper Abc brought action against Cope radio station and its star journalist Federico Jiménez Losantos, who was then director of the program La mañana. The radio host used the airwaves to disparage then-Abc director José Antonio Zarzalejos and asked readers to cancel their subscriptions. The Vocento Group, owner of Abc, viewed this as a denigration campaign that violated competition laws, and turned to a mercantile court to seek damages. A judge sentenced Jiménez Losantos to a payment of 100,000 euros for issuing insults against Zarzalejos and damaging his honor and dignity.

- Alistair McAlpine. Disseminating libelous rumors through online social networks may be considered a crime, at least in Britain. The conservative politician Alistair McAlpine has mobilized heavy legal artillery to demand compensation from the thousands of Twitter users who passed on the false claim that he abused a young man around a dozen times in the 1970s. The false story originally aired on the BBC (leading to the resignation of its director general), which will pay McAlpine 185,000 pounds (230,000 euros) in damages, even though the program never mentioned his name. McAlpine's lawyers have located at least 1,000 Twitter accounts that relayed the rumor, and are asking them for compensation via donations to a charity.

But it is a different matter entirely when an organization faces up to a company to defend a set of ideals. Presno still recalls a campaign started in 1986 by London Greenpeace (a small group not associated with Greenpeace International) against McDonald's, which led to a prolonged lawsuit popularly referred to as the McLibel case. The non-profit drew up a six-page factsheet titled "What's wrong with McDonald's?"

It claimed, among other things, that "McDonald's is one of several giant corporations with investments in vast tracts of land in poor countries, sold to them by the dollar-hungry rulers [often military] and privileged elites, evicting the small farmers that live there growing food for their own people;" and "McDonald's require that their 'fresh lettuce leaf,' for example, is treated with twelve different chemicals just to keep it the right color, at the right crispness, for the right length of time. It might as well be a bit of plastic."

The European Court of Human Rights, Presno notes, ruled that political expression requires a high level of protection, and considered that in a democratic society a small activist group such as London Greenpeace should be able to carry out its activities effectively, as there is a clear general interest in allowing such groups and individuals outside the mainstream to contribute to the public debate by disseminating information and opinions on general interest issues such as health or the environment.

Back in Spain, Presno adds, there was a 2003 ruling by the Constitutional Court backing a cattle breeders' association that recommended its members not use semen from a specific distributor. The court found that freedom of expression includes criticism of someone else's conduct, even if this party is bothered, concerned or upset by it, since pluralism, tolerance and a spirit of openness are requirements for a democratic society.

The professor highlights the public nature of the target of criticism in this Constitutional Court decision - a television program such as La noria would also fall in this category - as well as the context in which the opinions are voiced and, above all, whether or not these help shape a free public opinion. "This last requisite is certainly present in the case of La noria," says Presno.

Presno considers that a broad interpretation of freedom of expression extends to people and groups who participate in the public arena (as is the blogger's case) "since there is a general interest in letting these people or groups contribute to the public debate by disseminating ideas on issues that affect us all."

Mediaset cannot silence anyone or take revenge on anyone"

In the case of the boycott on La noria, a spokesperson for Mediaset España (Telecinco's parent company), made it clear that it accepts "freely expressed" criticism and denied that its lawsuit was meant as revenge against the blogger, who indirectly ended a program that once had excellent audience ratings. "Mediaset cannot silence anyone or take revenge on anyone."

Telecinco recognizes that criticism represents the very essence of freedom of expression - "besides being a fundamental right, it is at the genesis of private media outlets, television among them." But it is one thing to criticize, and quite another to issue threats that "impose on another party behavior that goes against its will." This, said Telecinco, "falls outside the boundaries of democratic coexistence."

Nobody questions, least of all the sociologist and journalist Xavier Coller, that freedom of expression should have no limits in an ideal society where all citizens act responsibly. "But this is not always the case because real life vastly differs from the ideal life. That is why limits are established to protect people's honor and also certain groups like children," he says.

Low-income families affected by some tragic event are told to go on TV"

Nor does anybody question the fact that freedom of expression is a requisite for democracy. "Without it, there can be no modern democracy," warns Coller. But sometimes, the umbrella of freedom of expression is used to shield "irresponsible behavior such as slander, libel or similar things."

"It is inevitable [though possible to correct through education] because not everyone shares the same values in life," he adds.

By doing what he did, Pablo Herreros wanted television stations to stop paying criminals to tell their stories. But sometimes this kind of action is not premeditated.

If the world wide web is defined by anything, it is by the freedom it offers"

"We have seen how low-income families affected by some tragic event are told by lawyers to go on TV shows to make some money and ensure that they [the lawyers] can collect their fees," confesses an executive at a television station. In fact, El Cuco's mother appeared on Cuatro and Antena 3 before moving on to Telecinco, and several sources confirmed that she received money from both of those stations as well.

In the case of La noria, Mediaset felt that the blogger may have crossed a line when he sent advertisers a letter warning: "If you don't adhere to our proposal, we would [sic] continue to demand that you do and we would promote a boycott of your products."

The sociologist notes that occasionally, freedom of expression is used to slander individuals, and even if the victim later obtains a favorable sentence in court, the damage is already done. "Sometimes, that damage is irreparable or very costly to repair," says Coller, illustrating his point with cases of politicians who were accused of corruption and had to resign, even if it was ultimately proven in court that the allegations were false.

The latest case in the long list of (sometimes unfounded) attacks involves Alistair McAlpine, treasurer under Margaret Thatcher, who was wrongly identified as a sexual abuser on social networks after the BBC aired a program with a victim's claims against an unidentified senior politician who held office in the 1980s. McAlpine's lawyers claim that online users who tweeted or retweeted the false information should pay for it. "If the World Wide Web is defined by anything, it is by the freedom it offers," says Complutense University professor Antón Álvarez. But if one proffers insults or lies, "it can naturally be denounced."

In the case of the British politician, the damage was multiplied by the internet's echo effect. "Fortunately for the British Lord, he has the resources to deal with the situation and Scotland Yard will probably cooperate. But what if it happens to a person without those resources? Or, as is already the case in Spain, if you have to pay money to start a suit against someone who used freedom of expression to issue false claims against you?" wonders Xavier Coller.

As for the La noria case, both parties reached a deal this week. The station will withdraw the lawsuit and Herreros will admit that advertising falls outside the line of the network that it airs on. But in any case, it will be hard for La noria to ever return to the little screen.