The experience of the pandemic has forced us, much faster than anticipated, to experience communication and human contact through technological means. In this context, social media plays an essential role: it has become the information and opinion-sharing medium par excellence. Today, social media is a vital channel for self-expression.

Like any human creation, interaction through social networks carries a negative facet: the possibility that the sender of the message commits illegitimate excesses. Under the guise of exercising a right (freedom of expression), a criminal offense is committed instead. Daily, we witness how social media—perhaps due to the impression of anonymity, its seemingly ephemeral nature, and its relationship with the virtual world (which, until recently, we conceptualized as the antithesis of reality)—is the constant stage for boundless statements and allegations of every nature, made from a user's "profile" and aimed at denigrating another. It is common, then, to read insults, offenses, slurs, criminal imputations, and the dissemination of falsehoods. Because it happens on social networks, senders believe they have free rein to say whatever they want, however they want, without any obligation to prove anything. They mistakenly believe that their actions are immune from prosecution.

Freedom of expression is a constitutional right. The right to enjoy a good reputation and honorability is also one. When these two rights clash, the boundary is established by responsible exercise. When this boundary is breached, criminal legislation authorizes legal action when a person considers that another has disseminated statements capable of affecting their reputation (Defamation, Article 146), when they consider that another has falsely attributed the commission of a crime to them (Calumny/Slander, Article 147), or when another has offended them by word or deed (Insult/Injuria, Article 145). The law does not distinguish the medium; it criminalizes the action.

Let us think, for example, of an entrepreneur who sells cookies and posts an image of the product on social media along with the price. A user, considering it too high, states: "Thieves, that's not worth even half." Is this action punishable? Yes, it is. It matters little whether the price corresponds to the commercial value of the product or not; what matters is that the content of the statement is capable of affecting the good name and reputation of the person who made the initial post. In the general collective mind, the word "thieves" is associated not only with a criminal act but also with a negative, socially undesirable behavior.

Another example: Let us think of a couple going through divorce proceedings. Once the process is over, one of them is dissatisfied with how the distribution of assets was arranged and posts on their ex-partner's profile:

"After 5 years of working together, I feel like the victim of an armed robbery."

Is it punishable? Yes, it is, for the same reasons noted above. Now let us think of a person taking their pet out for a walk without a bag to clean up after it. A third party takes a photo of them and publishes the image on a profile with this text:

"Pigs, filthy. Let's spread this so at least they feel ashamed."

In addition to the unauthorized disclosure of the image, the content of the post itself is clearly defamatory. The words "pigs" and "filthy" associated with a person, as in this example, constitute a statement with peyorative and denigrating content that damages their honor.

Social networks do not constitute an insurmountable obstacle for victims. They do, however, imply the need to implement different mechanisms—especially regarding evidence—to increase the likelihood of judicial success. Expert (technical) evidence becomes the protagonist of these proceedings, as it is the proper means to link the content of the post, the social media profile used, and the natural person facing the lawsuit. The quality of the evidence and creativity in its production will be the decisive elements for the victim to obtain both the vindication of their honorability and compensation for the damages and losses caused to them. At Facio & Cañas, we have a specialized litigation team that can advise you on executing a creative and aggressive strategy in defense of your interests