The Plenary of the First Chamber of the Supreme Court has resolved a cassation appeal with which sarcastic criticism on Twitter and the use of images posted on the Internet in private accounts is supported. In the case, an employee demanded that her former boss be sentenced for non-pecuniary damage, and that she be paid the sum of 120,000 euros.
In the tweets that were the subject of the trial, the defendant had made sarcastic comments about the plaintiff’s presence at certain social events when he was off work, and some of the tweets also included images of the employee in these activities.
The tweets carried phrases such as “are you still on sick leave? And of course having a party”, or photos of the defendant with a friend with comments such as “common sick leave, he doesn’t seem sick. Basically a meme. In the resolution document we can read the description of a tweet that reads:
accompanied by a photograph of an event in the world of fashion in which four people appear, among whom the applicant is perfectly identified, in the center of it; as well as a summary of a sentence handed down by the Social Chamber of the Higher Court of Justice of the Region of Murcia, under the heading of “Dismissal of an employee for celebrating the football Eurocup while on leave due to depression”
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Without insulting expressions, in relation to truthful facts, and on a matter of general interest
The supreme court ruled out illegitimate interference with the plaintiff’s right to honor, since the tweets consist mainly of opinions, sarcastic comments and criticisms of the plaintiff, in relation to truthful facts and about a matter that presents a certain general interest, such as unjustified absenteeism, without using insulting or degrading expressions.
“What the defendant did was a criticism, using a sarcastic tone”
Furthermore, the Supreme does not appreciate interference in the right to one’s own image:
The images of the plaintiff included in some tweets present him at events in the world of fashion and image and in public places, in the vicinity of politicians. These are photographs, taken with the express consent of the plaintiff himself, which were already published on pages of various Internet social networks (Facebook, Instagram, Twitter), by people other than the defendant and close to the plaintiff (his political party or some of his friends), without the plaintiff having made any objection to this previous publication.
It is a change in the direction of the Court, which already “has a track record in which the right to honor is placed above the right to freedom of expression.” If now sarcasm does not harm honor, and the doctrine that condemned Strawberry and Cassandra has also been corrected, perhaps another door opens for their acquittal.
Saying the medical reason for sick leave is a violation of privacy
However, the high court condemns the disclosure of medical data. The defendant revealed that the plaintiff was on sick leave due to depression and this does constitute an unlawful interference with the fundamental right to personal privacy.
The information related to the physical or mental health of a person is included within its own scope and reserved against the action and knowledge of others that preserves the right to privacy of art. 18.1 of the Constitution, insofar as the data that refer to health constitute an important element of your private life. It is not only intimate information but also especially sensitive from this point of view and, therefore, it is worthy of special protection from the guarantee of the right to privacy. This has been declared by both the Constitutional Court and the European Court of Human Rights.
For this reason the defendant must compensate the plaintiff with 6,000 euros, eliminate tweets and refrain from intruding on the privacy of the person again.
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