Navigating the global liability defence agenda
YosStop: A Warning For Social Media Users
On 29 June 2021, a popular Mexican influencer and youtuber known as YosStop (Josseline Hoffman) was arrested after Ainara Suarez filed an accusation against her for producing, storing and publicizing a video showing the gang rape that Suarez suffered at a party in May 2018, when she was 16 years old.
Suarez stated that while she was being sexually assaulted, other people in the vicinity recorded the attack, circulated the recording, and posted it on social media.
The case became even more controversial when the influencer YosStop, in a video released to her millions of followers, commented on the video and insulted the victim.
Suarez filed a criminal charge against influencer YosStop and do not disregard the possibility of her filing a civil lawsuit against the influencer, to claim moral damages, due to the psychological effect and reputational damages she suffered as consequence of the comments made by the influencer on her social media.
This case is relevant to the Mexican legal system since, although there has always been a public debate about the content that can be published by a person and the limits of the freedom of speech, this is the first time that a youtuber has been arrested and criminally processed, due to declarations made via social media
YosStop was incarcerated while her defence collected more evidence for her case. After 5 months in jail, the defense and Ainara Suarez reached an agreement and YosStop was released. Although the details of the agreement are not available to the public, they usually include an economic compensation, the obligation to publicly apologize to the victim and taking educational courses given by the government or private foundation to prevent discrimination.
As part of the public apology, YosStop uploaded a video to her Youtube channel where she does recognize that she made a mistake, and she is now including more educational content in her channel.
As regards the possibility that Ainara Suarez could bring a civil lawsuit claiming moral damage from YosStop, based on the comments published on social media, we consider that this is legally possible under the Mexican legal provisions; particularly, Article 1916 of the Mexico City Civil Code, and Article 26 of The Civil Liability Law for The Protection of The Right to Private Life, Honor and Own Image of Mexico City.
According to Article 38 of The Civil Liability Law for The Protection of The Right to Private Life, Honor and Own Image of Mexico City, the civil action should be brought forward by Ainara Suarez, the injured party in this case, and her claim should be filed within 2 years following the date when the illegal act was committed. However, in this specific case, at the time of the event, Ms Suarez was 16 years old and she was not able to exercise her rights on her own; therefore, she could easily argue that her 2 year limitation period did not start to run until she reached the legal age 18 on 2021.
The sanction, in addition to the economic compensation that would be determined by the judge according to the circumstances of the case, would include the publication of the judgment in the same way that the offense was committed.
Although the option to commence of civil proceedings is still available, it is unlikely, because usually when the parties reach an agreement in criminal proceedings, that agreement is for full and final settlement of all prospective claims.
“ARTICLE 1916.- By moral damage it is understood the affectation that a person suffers in their feelings, affections, beliefs, decorum, honor, reputation, private life, configuration and physical aspects, or in the consideration that others have of themselves. It will be presumed that there was non-pecuniary damage when the freedom or physical or mental integrity of people is unlawfully violated or impaired.
When an unlawful act or omission produces moral damage, the person responsible for it will have the obligation to repair it by means of monetary compensation, regardless of whether material damage has been caused, both in contractual and extra-contractual liability…”
 “Article 26.- The capture, reproduction or publication by photography, film or any other procedure, of the image of a person in places or moments of his private life or outside them without the authorization of the person constitutes an affectation to the moral patrimony.”