The Honor Versus Freedom of Speech on Social Networks

A Mechanism for Determining Moral Damage in the Face of a Human Rights Collision

Abstract

This study analyzes the element of unlawful act in social media posts as events that cause an affectation to the right of honor and good name and could consequently cause moral damage. Initially, the unlawful act is distinguished from the wrongful act, as a necessary element for the damage to be configured. The speech or opinion analyzed must comply with requirements determined by international human rights standards regarding freedom of speech, in order to determine whether the act is unlawful or not. In this case, the standard consists of a tripartite test and the digital systemic perspective in order to verify the existence of an unlawful act that constitutes moral damage to be compensated. Similarly, the nature is briefly differentiated between the publications disseminated by its author and those in which the person who performs the act only shares the content created by a third person. This article evidences the lack of application of human rights standards in the classification of the damage and its pernicious consequences in the administration of justice in Ecuador. With this analysis, the judge will be able to determine the nature of the act in order to convict the defendant to repair damages or dismiss the alleged claim.