Libertad de expresión y de información: juntos, pero no revueltos

In this forum, Imanol de Hipólito Lorenzo, lawyer in Bardají & Honrado, addresses freedoms of expression and information in a media and social context in which misinformation is the predominant note in everyday life.

The allusions to freedom of expression and to the freedom of information, especially on social networks, is already a constant. Any allegation seems to be supported by any of these rights as if they were a course licence to publish what you think.

It is true that the rights to information and freedom of expression guarantee citizens the possibility of express and receive information without undue interference and, furthermore, contribute positively to public opinion. Likewise, they provide greater richness to the democratic debate and the general interest. But are the areas in which these rights apply really known? How far do your limits go?

Knowing freedom of expression and information

As we will see, both rights have coincidences and similarities, although its sphere of protection is different. Article 20, first section of the Spanish Constitution (EC) is responsible for introducing these two rights into the Spanish Legal System, by recognizing and protecting the rights:

a) A freely express and disseminate thoughts, ideas and opinions through words, writing or any other means of reproduction.

(…)

d) A freely communicate or receive truthful information by any means of dissemination.

Therefore, letter a) of article 20.1 EC mentions the right to freedom of expression and, for its part, letter d) what regulates is the right to information or, to be more precise, the right to communicate or receive truthful information.

We could think that both rights, being contained in the same article of the EC, are a single right with several aspects. But the truth is that he himself Constitutional Court (TC) has considered them as rights closely related, but at the same time different from each other (see, among others, Sentence 193/1986, of August 13, 1986).

In these time in which so much is said about disinformation and in which the Internet offers possibilities for the dissemination of information and speeches almost without limits, understanding the similarities and differences between the rights to freedom of information and expression has become a essential requirement.

Refining the issue a little more, we could establish as a clear differentiation criterion between both of them that the right to freedom of information covers communications that are transmitted through any medium (press, television, digital, etc.), as long as what is communicated is truthful information and has a “newsworthy” nature. On the contrary, the right to freedom of expression protects the diffusion of ideas, thoughts u opinions through any means, but to which it is not necessary to apply the requirement of truthfulness to them.

They can also be distinguished to the extent that the right to freedom of information is more focused on the receiver of the message, since it has influence on public opinion. For its part, the right to freedom of expression is more related to who sends the message, so that it mainly affects the individual sphere. In other words, the first is more linked to people in general, and the second is linked to the person at their individual level.

The limits of freedoms

Regarding the exercise of these rights, both find their limit in it respect for other fundamental rights. The collision usually occurs with the rights to honor, the privacy and her own image of third parties (Article 18 CE), although it is also necessary to consider the possible injury to other rights, such as, for example, those of intellectual property. It will be necessary to weigh up the rights in conflict to determine which must prevail in each specific case. In this regard, jurisprudence has established a series of requirements that delimit the correct exercise of the freedoms of information and expression.

Both rights find their limit in it respect for other fundamental rights. The collision usually occurs with the rights to honor, the privacy and her own image of third parties (article 18 CE), although also in those of intellectual property.

In the case of the freedom of information, the information communicated must be truthful, so it must be contrasted and based on verifiable facts, avoiding manipulation or intentional misrepresentation of information. Furthermore, only information that contributes to the public debate or collective knowledge, so they must stick to facts whose knowledge is of interest to the general public. In general, issues that affect the intimate or private sphere of people, so the dissemination of strictly private information or photographs taken within the domestic and family environment of a person, even when they are a public figure, will - in all probability - be an attack on their rights to privacy and their own image.

As for the freedom of expression, criticism or “harsh” communications are permitted as long as they do not seek exclusively dishonor or humiliate someone person, a plurality of people or groups. In this sense, a offensive, insulting or degrading speech It could mean illegitimate interference in the right to honor of third parties and would not be protected by freedom of expression. To the extent that subjective opinions do not have to pass the truth filter, it is easier to fall into interference with the rights of third parties and even hate speech.

The exercise of these rights entails and act of individual and collective responsibility, and it is necessary to understand the impact they cause about the rights and freedoms of other people and groups.

In these times when so much is said about disinformation and in which the Internet offers possibilities for the dissemination of information and speeches almost without limits, understanding the similarities and differences entre los derechos a la libertad de información y de expresión se ha convertido en un requisito esencial para la correcta difusión de información y la emisión de opiniones. Así pues, el ejercicio de estos derechos conlleva un acto de responsabilidad individual y colectivo, and it is necessary to understand the impact they cause sobre los derechos y las libertades del resto de personas y colectivos.