Nowadays, social networks are fundamental tools for professional and business development, however, they can also become a scenario where offensive comments or unfounded accusations can seriously affect the reputation of individuals or companies.

Defamation or mere criticism?

However, it is important to bear in mind that not all negative publications constitute a crime, nor are they always subject to criminal or civil prosecution. Therefore, we believe it is key to differentiate between libel and slander, and to assess their seriousness in order to determine whether they are actionable.

Libel: criminal charge

Slander, regulated in articles 205, 206 and 207 of the Criminal Code, requires the concrete and definite imputation of a crime to another person, made with knowledge of its falsity or with reckless disregard for the truth. It can be configured, for example, by expressions such as “swindler”, “thief” or “rapist”, provided that they are accompanied by concrete facts that give the appearance of the commission of such crimes. This is established, among others, in Judgment 10/2021 of the Provincial Court of Ciudad Real, Section 2, of 18 January, Rec. 113/2020.

Injury: injury to dignity

For its part, insult, as set out in Articles 208, 209 and 210 of the Penal Code, requires the concurrence of three requirements:

  • An objective element, consisting of injury to dignity or reputation.
  • A subjective element, i.e. a clear intention to offend, discredit or belittle.
  • Circumstantial factors that make it possible to determine the seriousness of the offence.

In the criminal sphere, only serious insults are prosecuted, while minor insults are excluded. A good example is provided by Ruling 128/2019 of the Provincial Court of Madrid (16th Section, 27 February, Rec. 274/2019), which acquitted the defendant because his conduct qualified as a minor offence of insults that could not be prosecuted criminally: he published on social networks the photo of his landlord with his personal details, calling him a “liar”, following an argument between the two.

Differences

In conclusion, the key difference between the two concepts is that slander requires falsely attributing a specific crime, while libel is limited to offensive expressions that injure dignity, without the need to impute a criminal act.

Civil liability: right to honour

However, the fact that a statement or publication is not sufficiently serious to be classified as a crime does not automatically mean that it is not subject to legal action. In the civil sphere, the dissemination of offensive expressions can be considered an unlawful interference with the right to honour, protected by Organic Law 1/1982, of 5 May, on the civil protection of the right to honour, personal and family privacy and one's own image. In these cases, if it is accredited that such conduct has caused real damage to the reputation or social consideration of the affected person, the latter may bring the corresponding civil liability action for damages.

In certain cases, even in the context of criminal proceedings, it is possible to seek compensation for the damage caused, in addition to the criminal action. However, whether this is possible depends on a careful analysis of the evidence and the extent of the damage suffered.

Jurisdiction in social networks

Another practical aspect to consider is the determination of the competent court, especially when the defamatory publication is made via social media. The global nature of these platforms may complicate the identification of the “locus delicti commissi”, i.e. the place where the offence is committed (which, in turn, could determine the forum).

In this sense, and in accordance with Articles 14.2 and 15 of the Criminal Procedure Act, case law has applied two main criteria:

  • Activity theory: which assigns jurisdiction to the court of the place where the perpetrator carries out the initial act of dissemination.
  • The criterion of ubiquity: which allows jurisdiction to be attributed both to the place from which the offences are issued and to the place where they are received or take effect, with the court that first hears the facts having jurisdiction.

In practice, jurisdiction usually lies with the court of the author's place of residence, since the publication is issued from there.

Recommendations for protecting your reputation

  • «Not everything negative requires legal action»: analyse whether it is slander, libel or simple criticism.
  • Gather clear evidence: captures, dates, context and real impact.
  • Contact a specialised lawyer before acting.
  • Consider criminal (libel or slander) and/or civil (action for damages).
  • Evaluates interim measures or removal requests on platforms, as appropriate.

Conclusion

Defamation on social media - especially in professional settings such as LinkedIn - can have serious consequences for your reputation and opportunities. Understanding the legal framework and having specialist legal advice is key to protecting your rights and choosing the right strategy.

At Martínez Sanz Abogados we have extensive experience in defending this type of case. If your professional reputation is at risk, we can offer you comprehensive advice and swift action to protect your rights.