What began as an exchange of accusations between two Instagram influencers ultimately reached Argentina’s highest court. On 29 September 2026, the Supreme Court unanimously overturned an interim injunction that had required one influencer to remove social media posts concerning another and prohibited any future references to that individual. The underlying question is one that concerns every social media user: how far may a court go in protecting an individual’s honour and reputation without unlawfully silencing another person’s speech?
The Court’s answer was unequivocal. Prior restraint is subject to a “strong presumption of unconstitutionality”, and an order that fails to identify the specific content deemed unlawful imposes an unjustified restriction on freedom of expression, producing a chilling effect that extends beyond the parties to other users. The Court neither declared the posts lawful nor ruled on the merits of the dispute. However, it introduced a compelling concept: as the Justices observed, human speech is not equivalent to algorithmic activity. Algorithms are capable of amplifying, disseminating and decontextualising content far beyond the original author’s intention.
What is the position under Spanish law? The point of departure is the same tension between Article 18.1 of the Spanish Constitution, which safeguards the right to honour, and Article 20, which protects freedom of expression and information. These constitutional rights are developed in civil law through Organic Law 1/1982 of 5 May, whose Article 9 allows an aggrieved party to seek cessation of the unlawful interference, prevention of imminent or future infringements, compensation for damages, and disgorgement of any profit obtained through the infringement. In other words, the Spanish legal system also recognises preventive remedies; the key issue, as in Argentina, lies in how such remedies are defined and limited.
Spanish case law has progressively drawn the boundary on a case-by-case basis. The Supreme Court has held that criticism expressed through sarcastic comments on social media does not constitute an unlawful interference with honour provided that it does not involve insulting, abusive or degrading language. By contrast, the dissemination of information relating to an individual’s medical leave has been found to infringe the right to privacy. Criticism, however offensive or upsetting, is not in itself sufficient. The decisive factor is whether the statements are objectively humiliating or degrading when assessed in their specific context, circumstances and setting. The courts have also recognised that while the extensive reach of social media platforms does not alter the legal assessment of whether an infringement has occurred, it may significantly influence the amount of damages awarded for moral harm.
The Spanish Constitutional Court has addressed this issue during the current year. According to publicly available information, Constitutional Court Judgment No. 52/2026 emphasises that “not everything is permissible” on social media. A person who falsely attributes criminal conduct to another cannot rely on freedom of expression to avoid any obligation to verify the accuracy of such allegations. At the same time, the Court refined the standard of diligence applicable to non-professional speakers, declining to equate them automatically with professional journalists. Both supreme jurisdictions converge on one fundamental principle: context matters, and the balancing exercise must be specific rather than abstract.
The lessons emerging from the Argentine case transcend national borders. Social media platforms have transformed virtually every user into a potential publisher and have multiplied disputes involving content creators, followers and brands. Against that backdrop, the temptation to ask a court to “erase” an opponent from the digital sphere is understandable. Yet an imprecise judicial order may ultimately function as a form of gagging restraint. The line between legitimate criticism and an unlawful attack on honour is a narrow one and cannot be drawn with broad brushstrokes. It requires the identification of each individual statement, a careful assessment of its context, and the selection of the least restrictive remedy capable of protecting the rights at stake. In the age of algorithms, protecting honour and safeguarding freedom of expression are not competing objectives but rather two aspects of the same requirement: rigorous and proportionate judicial scrutiny.
