A recent judgment by the Supreme Court concludes that a satirical thread on X (formerly Twitter) about a public figure is protected by freedom of artistic creation.
Satire is an artistic genre with a long tradition in Spanish culture. Despite this, it is a form of expression that has never been devoid of controversy in that, by distorting reality, it seeks to incite the reader or spectator to criticize a certain situation or a particular person.
In fact, back in the XVII century, Lope de Vega advised that satire should not be “clear or open” and recommended that it “mock without malice; if you put to shame, don’t hope to win applause or merit fame” (The new art of making plays in this age, Lope de Vega, F.).
The guidance of the “phoenix of wit”, translated into legalese (always much drier), has been followed by the courts. Indeed, the European Court of Human Rights has underscored that satire “is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate” (point 33 of the Vereinigung Bildender Künstler v. Austria judgment of 2007). As a protected discourse, its creation and dissemination must be overseen so that it does not become a weapon to mock and discredit an individual.
Precisely this juxtaposition between the rights protecting freedom of expression and artistic creation and other personality rights such as honor, is the matter addressed by Supreme Court judgment no. 1426/2024, of October 29, 2024.
The case in question referred precisely to a series of threads posted to a journalist’s X profile, which contained a satirical, fictional account regarding a fictional character identified using the real surname of a well-known politician. This fictional account portrayed the public figure in a grotesque context, set in the 70s and 80s in Spain, in a clearly humorous vein.
The undeniably provocative tone of the messages led the politician to sue the journalist, on the grounds that he had been the victim of an unlawful attack on his fundamental right to honor (art. 18 of the Spanish Constitution), and claimed damages amounting to €25,000. The claim was dismissed at first instance and the judgment was confirmed by the Provincial Appellate Court. However, the plaintiff appealed to the Supreme Court, arguing that his right to honor had been seriously violated by the fictional account.
When analyzing the case, the high court made a series of extremely interesting observations in relation to fictional content of a satirical nature.
It firstly held that fictional accounts such as these – in this case a literary account – were protected by the right to freedom of artistic creation (art. 20.1, b) of the Spanish Constitution), as the Constitutional Court had held in its judgment no. 51/2008, of April 14, 2008, in relation to the novel El jardín de Villa Valeria (Villa Valearia’s Garden). This right protects artistic discourses from censure by the public powers or by individuals, safeguarding the creation of fictional narratives that may use elements (for example, people or situations) taken from reality.
In addition, the Supreme Court found that the fiction analyzed was not only protected by said fundamental right, but that it also constituted a form of satire, and this too is protected, since it is considered to contribute to a debate of public interest through irony, sarcasm or mockery, as the national courts or even the Court of Human Rights itself have concluded (i.e., the EON v. France judgment of 2013).
Finally, the Court held that the plaintiff’s right to honor had not been affected by the satire in question, because it was a totally fictitious portrayal that did not mirror the politician’s vital circumstances. In other words, readers would not “recognize” the plaintiff in the story, regardless of the fact that his surname had been used.
Consequently, it should be highlighted that in this case, the Supreme Court chose to reinforce the protection of satirical content in Spain insofar as, and to quote the author mentioned at the beginning of this article, this type of artistic discourse should be understood to “mock without malice”. This is because protection of the fundamental right to freedom of artistic creation is a requirement of the open-minded spirit that embodies democratic society.
