One of the big questions of our time is the legislative and judicial treatment of the freedom of expression and of his limits. It is an essential debate because it makes a mistake with the debate on the democracy itself. And it is a complex debate because the exercise of this right has abundant friction areas with the exercise of other rights also fundamental. And then it is necessary to measure, to calibrate, to counterweigh and, finally, to choose. And never or hardly ever the decision is completely clear, because always or almost always social values or the same way defensible individual rights are opposed. That's why in this matter the work of the judges is so important across the jurisprudence.
One of the most delicate variants – in this aspect - of the freedom of expression is the information freedom: the one that there exercise those that devote themselves to tell us precisely what it spends across different means. Here it is where the shock takes place more often between juridically protected values. Because the information can affect and affects often to the intimacy of the persons or to his basic dignity, to the individual or collective safety, to the general interests of economic or social type or to any other element worth being preserved inside our coexistence.
There is big the temptation of doing that the rope always breaks for the side of limiting the information freedom to preserve other rights. But it is a highly dangerous way.
It is true that the matter is so complex that it escapes to the general recipes and has to value every case for his concrete circumstance; but personally, if it had necessarily that to choose with general character, my inclination is to put myself of the side of the freedom of expression and of information. Moreover, I share the constitutional interpretations that support that, in case of doubt, the right to the freedom of expression must be considered to be a preferable right.
What does not mean that it is unlimited. Along with the right, to count and to know, there exists the right – perfectly legitimate in certain cases - to which they are not counted and there are not known any things which diffusion hurts that benefits. And also, another big question: does the information freedom include the diffusion of false informations? Is the lie protected by the right to the freedom of expression? In my opinion, no.
In any case, for me, the democracy is essentially a political system in which the leaders are chosen and revoked by means of the vote and in which they all have right to express themselves freely. These two elements, the vote and the free expression, they are in my perception, the central nucleus, the marrow of the democracy. And that's why I refuse to debilitate them anyway.
Of all this they debate and legislators and politicians will keep on debating always, magistrates and lawyers, professionals of the communication and civil in general. It is an exciting social debate in his fund and with an inexhaustible casuistry. No concrete case will solve the general problem to us; none general doctrine will save the work to us of analyzing and deciding about every concrete case.
But this is not the question in the recent judgment that he has condemned to two journalists of the Chain SER for spreading a certain information on the web page of this broadcasting station. Because the judge has not found lacking in veracity in the information; on the contrary, it has admitted definitely that the published was true. Neither it has questioned that the content of the information could be spread across mass communication media; on the contrary, it admits into his judgment that “cannot refuse that it is a question of facts noticiables”.
Then: why are the journalists condemned? Because according to the judge the information freedom is exercised in the mass media and Internet is not mass communication media. If it has fallen down of the chair, join. Yes, it is a question of a judgment of a few days before the beginning of the second decade of the XXIst century. And it bases his decision on this reasoning:
“The constitutional protection to the right to information refers to the media of social communication - television, radio or printed matter - but it must be tinted that Internet, there are no social mass communication media in strict, but universal sense”.
There are no mass communication media in strict, but universal sense. There that stays. In universal that thing about it has the whole reason; the motive for which this universality prevents from considering it to be a way in strict sense belongs to an arcane conceptual one that is not explained in the judgment. Although of step, the judge gives us the list of what can be considered to be mass media: the television, the radio or the press. We will have to look for a name different from the innumerable instruments and skills that we use the human beings to communicate in the called Age of the Information.
I will say to them that the judgment does not worry me especially. Because it does not question the freedom of expression or of information in his fund, but simply he ignores the progress. It is simply anachronistic, as it it had been in the times of the diligence to deny that the motorcar was a locomotion way. Internet is the big mass communication media, universal and in strict sense, of the XXIst century, and that at this point it we all know except the holder of the Court of Penal number 16 of Madrid. But that has easy arrangement.
Postscript: It is much better that they avoid displacements this weekend. If the forecasts are fulfilled, we can have difficulties in the highways, in the airports and in the iron routes. We will be on the foot of the cannon, but they will help us and will be helped if they postpone the unnecessary trips. Thanks a lot.
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