Slander as a Criminal Offence (Art. 205 CP): Penalties and Defence

Accusing someone of having committed a crime they did not commit is not a mere insult: it can itself be a criminal offence. The Criminal Code (CP) protects honour against false imputations of criminal conduct through the offence of slander (in Spanish, calumnia), the most serious of the offences against honour. As criminal lawyers focused on the offence of slander, we explain here exactly what the offence requires, the penalties it carries, why proof of the truth grants exemption, how it differs from insult, and what the defence is built on. This article deals with slander alone; the insult and the expression that harms dignity are covered in our analysis of criminal insult.

What Slander Is Under the Criminal Code

Art. 205 CP defines slander in a short and demanding formula: it is the imputation of a crime made with knowledge of its falsity or reckless disregard for the truth. From that definition come the three elements the prosecution must establish and which therefore mark out the ground for the defence:

• Imputation of a specific crime: a generic insult is not enough, nor is branding someone a "criminal" or "corrupt" in the abstract. It requires attributing to a particular person a precise criminal act —a theft, a fraud, a bribe, an assault— that is identifiable and capable of being prosecuted as a crime.
• Falsity of the imputation: the act attributed must be false. If it is true, there is no slander, and this is where the exceptio veritatis examined below comes into play.
• Subjective element (intent): the imputation must be made with knowledge of its falsity or with reckless disregard for the truth. This is the heart of the offence. A person who, on reasonable grounds and after minimal verification, passes on a suspicion that later turns out to be mistaken does not commit slander; a person who asserts a criminal act as true knowing it is not, or who spreads it with complete indifference to whether it is true, does.

The protected interest is honour, in its twofold dimension of reputation in the eyes of others and of self-esteem. The gravity of slander stems precisely from the fact that it links a person to the commission of a crime, with the social and personal discredit that entails.

Penalties for Slander: With and Without Publicity

Art. 206 CP grades the penalty according to a decisive factor: whether the slander was spread with publicity or not.

• Slander with publicity: imprisonment of six months to two years or a fine of twelve to 24 months.
• Slander without publicity: a fine of six to 12 months.

When is there publicity? Art. 211 CP makes it precise: slander is deemed to be committed with publicity when it is spread through the press, broadcasting or any other medium of similar effectiveness. The settled case-law of the Supreme Court takes the view that publications in the media and on the internet —and, characteristically, on open social networks— fall within that "similar effectiveness", given their capacity to reach an indeterminate number of people.

Publicity also has a significant civil consequence: Art. 212 CP provides that, in these cases, the natural or legal person who owns the media outlet through which the slander was spread is jointly and severally liable in civil terms. And, as a specific form of redress, Art. 216 CP allows the court to order the publication or dissemination of the convicting judgment at the convicted person's expense. The figures and the precise extent of each penalty depend on the case and must be checked against the current text of the Criminal Code (CP).

The Exceptio Veritatis: Proof of the Truth Grants Exemption

Slander has a feature that sets it apart from almost every other offence: the truth is a ground for exemption from penalty. Art. 207 CP states it clearly: the person accused of slander shall be exempt from all penalty by proving the criminal act they imputed. This is the so-called exceptio veritatis or defence of truth.

The rationale is logical: if what was asserted is true —if the person actually committed the crime attributed to them— their honour has not been unlawfully harmed. Its scope, however, should be made precise:

• The burden of proving the criminal act falls on the person who imputed it, not on the offended party.
• A prior conviction of the offended party for that crime is not required: it is enough to establish, within the slander proceedings, the reality of the criminal act attributed.
• The exemption operates in respect of the specific act imputed; proving other, different or unfavourable facts about the person does not neutralise the slander.

In practice, the exceptio veritatis turns many slander proceedings into a debate over the truthfulness and soundness of the underlying information: documents, prior complaints, decisions, sources and checks carried out before spreading the imputation.

Slander and Insult: the Key Difference

Slander (calumnia) and insult (injuria) are the two offences against honour, and they are frequently confused, but the line between them is clear and determines the applicable offence, the penalty and the strategy:

Slander (Art. 205 CP)	Insult (Art. 208 CP)
Imputes a specific crime.	Harms dignity without necessarily attributing a crime (an insult, a degrading expression, the imputation of a non-criminal fact).
Requires falsity and knowledge of it or reckless disregard for the truth.	Only insults that are serious by their nature, effects and circumstances are an offence.
Imprisonment of 6 months to 2 years or fine of 12 to 24 months (with publicity).	Fine of 6 to 14 months (serious, with publicity).

The rule to remember is simple: slander imputes a crime; insult does not. Calling someone a "thief" because, it is asserted, they stole a specific sum on a specific date points towards slander; a degrading insult with no attribution of a precise criminal act lies in the territory of insult. We deal with that second offence in detail in our analysis of criminal insult.

How It Is Prosecuted: Private Complaint and Pardon

Slander is a private offence, prosecutable only at the instance of the party. Art. 215 CP sets out its procedural rules, which it is worth knowing before acting:

• A formal complaint (querella), not a mere report: no one may be punished for slander except by way of a complaint by the offended party or their legal representative. Simply reporting the facts is not enough: criminal action must be brought through a querella. Exception: the matter is prosecuted of the court's own motion where the offence is directed at a public official, authority or agent in relation to the exercise of their office.
• Judicial leave for slander uttered in court: no action for slander may be brought for statements made in proceedings without the prior leave of the court that heard or is hearing them.
• Pardon by the offended party: the pardon of the offended party extinguishes the criminal action. This is a common way of closing matters where there is a rectification or redress satisfactory to the person slandered.

There is also a limitation period and certain formal requirements for the complaint whose observance is essential: a poorly drafted or out-of-time complaint can frustrate the action regardless of the merits. It is therefore advisable to seek advice before taking any step, whether you have been slandered or are the subject of a complaint.

Defence Strategy Against a Slander Charge

The defence to a slander charge is built on the precise elements of the offence, none of which is presumed:

• Exceptio veritatis: if the imputed act is true, proving it grants exemption from all penalty (Art. 207 CP). Gathering and adducing the documentary and witness basis for the imputation is often the main line.
• Absence of imputation of a specific crime: if what was said does not attribute a precise criminal act, there is no slander; it may, where appropriate, be argued on the less serious ground of insult, or be protected as criticism.
• Lack of the subjective element: a person who spreads information on reasonable grounds, after serious verification and without awareness of its falsity, does not act with the knowledge of falsity or the reckless disregard for the truth that the offence requires.
• Freedom of information and expression: truthfulness —understood as diligence in checking— and the public interest of the information are limits to the offence, especially in matters of public relevance.
• Defects in the complaint and ways to close the matter: examining standing, the time limit, judicial leave where applicable and the possibility of a rectification or of the offended party's pardon may resolve the conflict without a conviction.

We do not promise an outcome —it depends on the facts, the evidence adduced and the legal characterisation— but we work to ensure that the prosecution is held to the standard the offence imposes and that our client's position is examined with rigour, whether in bringing or in defending the charge.