From compensation of hundreds of thousands of euros to skeletal sentences. Illegitimate interference in honor costs money, although not all people’s is worth the same. And the courts do not have objective rules to quantify it either. One of the largest penalties in history for violating this fundamental right was set at 340,000 euros at the end of last year. Some photos in a swimsuit and without the bikini top of the presenter Mariló Montero and a friend, captured in private places on the Maldives and Bora Bora, along with insinuations about their sexual condition, led a Madrid court to repair them with this digit.
To do this, the presenter’s lawyer, Eliseo Martínez, had to make a calculation “taking into account the convictions handed down in similar cases of illegal capture of photos of famous people such as Penelope Cruz.” And this is due to the difficulty in determining how much “intimacy is worth to someone who, being able to do so, decides not to sell it”, or how much “what is worth what has not been priced”. Because in this type of lawsuit, explains the managing partner of the law firm Ius + Aequitas, the most complicated thing is to find a figure “adjusted to the severity” of the “humiliation” suffered or the “anxiety generated”.
To fully estimate the amount requested by the journalist, the judge based himself on the “continuous persecution” to which she was subjected by the paparazzi, which “is not limited to a single photograph”, at times of her “strict private sphere”, while you were with your children or on the high seas. He also highlighted in the sentence “her veiled insinuations about her sexual condition” of her, that “it only concerns her and only for her can it be revealed.”
As Inmaculada Vivas, Professor of Civil Law at the University of Seville, explains, “in Spain there are no rules for the economic determination of non-pecuniary damage”, such as the pain caused by the death of a child due to a medical failure. The exception occurs “in the field of damage caused by motor vehicles, in which a system of scales established in Law 35/2015 is followed”. As there are no “objective parameters”, in the quantification of compensation there is an “inevitable subjective component” on the part of the judge. This explains the disparity of sentences that have been handed down for infringement of honour, privacy or one’s own image. To avoid “infringing conduct” of these fundamental rights, it is “crucial” to avoid “compensation of a symbolic nature”, considers the teacher.
This is what the Supreme Court did in 2012, when it sentenced several media outlets to pay Elsa Pataky 310,000 euros for some photographs, taken without her consent, in which she appeared nude. The actress was posing for a fashion and beauty magazine in a secluded spot on a “public transit” beach in the Riviera Maya. Until then, the penalties for publications for this type of action did not usually exceed 20,000 euros. “The images were captured furtively. The photographers, as journalism professionals, knew that a report was being developed under certain conditions, so the dissemination of these images denotes a questionable attitude in the profession”, criticized the sentence.
The Barcenas Papers
He knows in depth all the sides of the coin.
Lawyer Teresa Bueyes, who has defended Bárbara Rey or Isabel Preysler, explains that in the event of a conflict between the right to privacy and to information, the “behavior” of the celebrity is taken into account, that is, it is considered whether they adopted guidelines to safeguard or not their private life against the knowledge of others. For example, the Supreme Court has argued that the second right prevails, and there is no place for compensation, when the paparazzi they capture images in public places, and not in a “clandestine” way, of well-known characters who voluntarily expose themselves to the “view of others”, even though “their image may be disseminated without their consent”. As the lawyer points out, celebrities have less strict protection of their fundamental rights than anonymous people because they have acquired “public relevance. It’s the price they have to pay for the advertising they live off of.”
For its part, the right to honor yields with respect to freedom of information when it is of “public interest” and is “true”, explains lawyer Gerardo Viada, for which the journalist is required to have verified the news, although later can be denied. In these types of cases, pressure from politicians on the media is frequent, as the PP did by demanding half a million euros from EL PAÍS for non-material damages after the publication of the Bárcenas papers, which uncovered the corrupt plot of the training to receive illegal donations and pay bonuses to its top management.
The founding partner of the Dikei Abogados law firm, who assumed the defense of this newspaper and won the PP in court, who ended up being convicted of profiting from the Gürtel plot, explains that the protection of the honor of politicians, especially in the exercise of their position , “is weaker” than that of other popular people since there is “a reinforced interest” in what they do. And the parties themselves, although they are legal entities, also have the right to honor recognized, although “it does not have the same scope” as that of natural persons. It is framed in “reputation or prestige” and not in “dignity”, an attribute of all human beings.
‘Big data’ in defamation lawsuits
Measuring something intangible, such as reputational damage, is not easy, which is why lawyers often rely on expert reports for the demand of lawsuits. As Alba García, director of Legal Issues at the communication consultancy Llorente y Cuenca, explains, “the quantification element with the greatest consensus is the advertising value” of the media to position content. In addition, in the age of social networks, the role of ‘big data’ tools stands out, which process data on a large scale, since they allow “access to all available public information that has mentioned the affected party”.
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