The Helena Jubany Case: Can Artistic Freedom Prevail Over a Victim’s Right to Honor?

15 October, 2025
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Intellectual property
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Lucas Charnet

!alt="Creació artística i la seva regulació en relació a la memòria dels difunts"

This week, a news story reignited a long-standing legal dilemma: a theatre company announced the premiere, set for October 26, of a musical titled “Em dic Helena Jubany. Un musical necessari” (“My Name is Helena Jubany. A Necessary Musical”), inspired by the life and death of Helena Jubany, a young librarian who was murdered in Sabadell in 2001. The family immediately responded with a firm rejection, stating that they had never authorized the production, that such a project could interfere with the ongoing investigation, and that they demanded its suspension via formal notice. Shortly afterwards, the Círcol Theatre in Badalona cancelled the show, claiming it was unaware of the play’s content.

This episode brings to the forefront a classic conflict in contemporary law: how far can freedom of expression —and artistic freedom in particular— extend when the subject is a deceased person, and their relatives claim legal protection for their memory? This article explores that question.

The Clash of Rights: Freedom of Expression vs. Personality Rights (Honor, Privacy, Memory)

In Spain, freedom of expression —which includes artistic creation— is protected as a fundamental right under Article 20.1 of the Spanish Constitution (CE). This freedom covers not only opinions or information but also artistic, literary, and dramatic expression. However, the right is not absolute: Article 20.4 CE limits its exercise when it conflicts with other recognized fundamental rights, including the rights to honor, personal and family privacy, and one’s own image.

Organic Law 1/1982 of May 5, on the civil protection of the right to honor, privacy, and one’s own image, regulates such conflicts and allows for protection even in the case of deceased persons. Although personality rights extinguish upon death, the law provides that the memory of the deceased may be legally protected by certain relatives (spouse, descendants, ascendants, or siblings) for up to 80 years after death. In the absence of such relatives, the Public Prosecutor may act (Article 4, LO 1/1982).

This legal mechanism allows challenges to expressions that, even if based on true facts, unjustifiably damage the dignity or reputation of the deceased or cause unnecessary suffering to their loved ones. The law thereby recognizes that a person’s memory is an extension of their personality.

Here lies the first key distinction: the protection of living persons differs from that of the deceased. Personality rights in life receive stronger protection, since the person can respond, correct, or seek compensation. In contrast, the rights of the deceased are exercised by their relatives and, while still real, are somewhat more limited —especially when a clear public interest is involved.

In the case of the Helena Jubany musical, there is a direct clash between the theatre company’s right to artistic creation —whose precise approach to Helena’s story remains unknown— and the family’s refusal, aimed at preventing the performance from taking place out of concern that an untimely portrayal could interfere with the ongoing investigation or harm Helena Jubany’s reputation. This conflict must be resolved through a balancing test in accordance with the jurisprudence of the Constitutional Court and the Supreme Court.

Constitutional Doctrine and Relevant Jurisprudence

The Constitutional Court: Balancing as a Method

The Constitutional Court has consistently held that when freedom of expression or artistic creation conflicts with the rights to honor or privacy, courts must apply a case-by-case balancing test to determine which right should prevail. The main criteria include:

1. Truthfulness or due diligence in verification: when the work is based on real events, those facts must be reasonably verified and not mere conjecture.
2. Public interest of the subject matter: the greater its social, cultural, or historical relevance, the stronger the protection of expressive or artistic freedom.
3. Degree of interference with personality rights: the violation is more serious when the work reveals unknown intimate details or introduces false or defamatory elements —as occurred in the Fariña case (discussed below).
4. Proportionality and context: if the artistic expression pursues a sensationalist or morbid purpose, or employs disproportionately invasive means, it may fall outside constitutional protection.

A relevant precedent concerning the protection of deceased persons’ honor is Judgment 190/1996 of the Constitutional Court, in which RTVE was condemned for broadcasting a false report linking a deceased young woman to drug use. The Court held that the information lacked truthfulness and unjustifiably discredited the deceased’s memory, violating both her honor and that of her family.

In this and other rulings, the Constitutional Court has emphasized that freedom of information and expression does not protect the dissemination of rumors, speculation, or inventions without a sufficient factual basis, particularly when such statements may cause moral or reputational harm.

The Supreme Court: Fiction, Truthfulness, and the Limits of Dramatization

The Spanish Supreme Court has further developed this doctrine in the field of audiovisual and literary creation, where the boundary between reality and fiction is often blurred. A paradigmatic example is the case of the TV series Fariña, an adaptation of Nacho Carretero’s book about Galician drug trafficking.

In that case, the Provincial Court of Pontevedra ordered the removal of a fictional scene in which a real person was portrayed as engaging in a sexual relationship that never occurred. The scene did not appear in the original book and had no judicial basis. The Court held that this artistic license exceeded the limits of creative freedom by introducing a false and intimate element that damaged the person’s reputation.

The Court’s reasoning made it clear that artistic freedom does not protect the invention of intimate or dishonorable facts about identifiable individuals when such fabrications lack relevance to the work’s public interest.

Similar Precedents: El odio by Luisgé Martín

The book El odio (“Hatred”), by author Luisgé Martín, sparked a comparable legal dispute. Inspired by the real-life crime committed by José Bretón against his children, their mother, Ruth Ortiz, requested that the publication be suspended, claiming a violation of her children’s rights to honor, privacy, and image. A court in Barcelona rejected the injunction, holding that there was insufficient evidence to assess any fundamental rights violation, and prioritized freedom of expression.

However, institutional and public pressure led the publisher Anagrama to suspend the book’s distribution indefinitely —without any judicial ruling declaring it unlawful.

Application to the Helena Jubany Case: Specific Analysis

When applying this general framework to the Helena Jubany musical, several nuances should be highlighted:

1. Unresolved judicial facts: Unlike other cases cited as precedents, the Jubany case remains under investigation. No final judgment has established the facts or individual responsibilities. This increases the risk that the play might incorporate speculative interpretations, unproven hypotheses, or controversial versions. The family has specifically argued that the performance could interfere with the investigation.
2. The family’s objection and the protection of posthumous memory: Although the family’s opposition should not, by itself, limit artistic freedom, it may indicate potential moral harm in an open and unresolved case. This objection highlights the risk of affecting the victim’s posthumous memory —a right protected through relatives rather than by the deceased themselves. When a work proceeds against the family’s wishes, the creator must act with particular care and respect to avoid unnecessary intrusion upon the deceased’s dignity.
3. Public interest and artistic value: The Helena Jubany musical has not yet premiered, and therefore the artistic approach remains unknown. This fact is crucial: without knowing the content, it is premature to judge whether the work will respect legal limits or constitute an unlawful intrusion.

Conclusion

The Helena Jubany case once again places at the center of legal debate the tension between artistic freedom and the protection of honor and personal memory. In an era marked by the rise of true crime productions and other dramatizations of real events —often backed by a powerful cultural industry—, a rigorous legal approach is essential to ensure a fair balance between creative expression and the rights of those portrayed.

At MES Advocats, we provide comprehensive legal advice on matters of freedom of expression, personality rights, and the protection of creative works, assisting artists, producers, and families in navigating projects inspired by real events with legal certainty and respect. Contact us!

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Caso Helena Jubany musicalDerecho al honor personas fallecidasLibertad de expresión límitesPonderación derechos fundamentalesProyectos basados en hechos reales

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