Analysis Of The Civil Protection Of Honor

Analysis of the Civil Protection of Honor

The Royal Spanish Academy defines honor as the glory or good reputation that follows virtue, merit, or heroic actions, which transcends families, people and actions themselves from whom it is walked. This concept, as such, can have two aspects, since one of them is externalized and is merely objective, while another is interior and goes through the sieve of subjectivity. In the words of Maiza Ozcoidi "no component of any community regardless of its predicament, has been exonerated from the possibility of an eventual discredit", since "such contingency refers to the social essence of honor, which decrees the primacy of the reflex perceived byThe group on the intimate consciousness of Honor itself ”1. This is the outermost scope of the right to honor, since as a right, whether fundamental or not, it has an internal aspect that is the concept that the individual holds of himself. However, it is essential to say that the linking of internal honor with the external concept is structural, since it is closely linked to the gregarious character of the human being, and its need for acceptance by the group. In this way, the Constitutional Court establishes in its jurisprudence that “for an injury to the right to honor, it is necessary that the dignity of its person be affected, the recognition that others have of him, of his moral integrity orof his social consideration ”, according to the judgment of the Constitutional Court 204/2001, of October 15.

Therefore, the honor can be defined as the good reputation of a person, and their protection will protect any attack, expressions or messages that could somehow imply discredit or contempt of the rest of society. The scale when deciding the honor of each person will be established based, not only to their own thoughts, but also, and in accordance with what was stated in the preamble of the Organic Law of Civil Protection of the Right of Honor, theintimacy and the image “by the concept that each person according to their actions maintains in this regard and determines their behavior guidelines” 2. It is in its negative aspect, however, it would mean the assurance of not being “escorted or humiliated before oneself or others”, as indicated by the judgment of the Constitutional Court 85/1992, of June 8.

In another area and as a fundamental right included in article 18.1 of the Constitution, is protected by the appeal for amparo, although it also has protection in other orders, we could say in almost all3, since it constitutes a crime of the title XI of the Criminal Code, in turn a cause of compensation for civil liability compensationextra -contractual and informs all areas of the different regulations and orders, either in the workplace, administrative, and even military4. It is a right to save any attack or interference, although as such, and neither being fundamental, it can be articulated as an absolute and unattainable right to any type of interference5.

In any case, the right to honor is articulated as almost full right with respect to the anonymous citizen, although it is not in the same way in relation to certain people, tell people especially linked to certain areas or professions.

To understand honor law, we must rely on the different sentences of the Constitutional Court, which either univocal, they come to solve the problem of conceptualizing this right. The reason is clear, as says Serrano Maillo, “defining the right to honor is not an easy task and most authors agree that it is an indeterminate legal concept, which has not prevented many of them from having Trying to specify, at least, to find defining features that, by virtue, of its continuity or permanence, help us to understand that it is honor and what is the right that protects it ”6, so that it reveals one of the problems of to reach an unequivocal concept of honor since it starts from the premise of its quality of indeterminate legal concept, playing said indeterminacy in favor of the possibility of being specified by legal operators in each specific case, but it is true that certain certain Aspects of the same as they are, on the one hand, the fact that it has an objective, external aspect, and a subjective, internal aspect, with the fact that it is directly related to the dignity of the person, as I The sentences of the Constitutional Court 78/1995, of May 22 and 46/2002, of February 25, as well as being legally protected in several areas, but without being an absolute and untouchable right with respect to others7.

Another characteristic of the right to honor, in which practically all those involved in giving a concept or definition coincide, is in the fact that we are faced with a “normative legal concept whose precision depends on the norms, values and social ideas in force inevery moment ”, according to the sentences of the Constitutional Court 180/1999 of October 11 and 52/2002/5, of February 25. This last characteristic is closely linked to its concept of indeterminacy, or rather of indeterminate legal concept, extreme is confirmed by Organic Law 1/1982 that in its article 2.1 establishes that “the Civil Protection of Honor (…) will be delimited by laws and social uses, attending to the scope that, for their own acts, keeps each person reserved for himself or his family”.

The problem of compensation for honor damage charged from the promulgation of the Spanish Constitution an unusual news, caused to the honor derived from the legislative recognition of the paradigmatic rights to honor, privacy and the image itself. Organic Law 1/1982, of May 5, does not separate in its articulate the study of each of the rights subject to protection, as would have been desirable8. The mixture would have justification if the attack on intimacy or the right to the image itself assumed at a time attempt against honor or vice versa.

The Legislative Power preferred not to systematize the different rights and was not interested in the least for the limits between constitutional freedoms of expression and information and the rights to honor, intimacy and image, nor did criminal implications and procedural implications take into account,and neither does civil doctrine9 either. The few norms of honor protection regulations are excessively schematic to serve as an inexorable channel of interpretation of behaviors. Something that affects the intimate life of the person, cannot be improvised within the limits of a concrete legal system that in 1982 still had a long democratic path to travel.

Naturally, it is not possible in an end -of -degree work to carry out a moderately thorough study of honor protection regulations. It is not because Organic Law 1/1982 does not constitute a special law in civil liability matters: among the consequences adopted before the damaged action11, according to which it is called illegitimate interference, there is compensation for moral damage, butThere are also other measures12, according to precautionary, cessation, abstention, etc., They are different, even if they connect with the world of the right of damage, according to the if you fall into the realization of this, there would probably not be so to criticize jurisprudence. The place that this law occupies in civil law is that of an important piece of the right of the person, and if it is interested.

This work will have a clear and precise structure, in order to guarantee adequate exposure of its contents.

In the first place, the basic concept of current regulations will be analyzed, which is illegitimate interference, to, from general considerations, study the positive delimitation that encompasses the typology of illegitimate interference with the overflow of the channels ofThe Honor Protection regulations, for which we must observe what refers to the dissemination of facts, revelation of writings and violation of professional secrecy, the cartoon of public persons, a comment to the exceptions of article 8.2nd and defamation as illegitimate interference, which must be verified regarding the concept of defamation: the two versions of article 7.7th, non -truthful information with the doctrine of neutral report, insults, attentive information of honor and intimacy, professional prestige and ostentation of criminal conduct, then studying negative delimitation, which encompasses interference for public interest,the express consent of the holder, and the possible tacit and indirect consent and the border between civil and penalty illicit.

Second, the judicial protection will be analyzed, focusing the focus on legally adequate procedures and protection measures: compensation actions and non -compensation actions.

Thirdly, active legitimation will be analyzed, mainly observing what affects the protection of the deceased’s memory and interference prior to the death and protection of the honor of legal persons.

Fourth, passive legitimation will be analyzed, verifying some difficulties that arise in the light of the applicable regulations in the Civil Protection of Honor.

In fifth and last place, the conclusions that will have been extracted from the investigation carried out from the study of legislation and jurisprudence will be presented, observed directly but also through doctrine.