On 12 May, the Italian Supreme Court handed down a judgment holding that an ironic and colloquial post published on the social networking platform Facebook did not constitute the criminal offence of defamation.
Background to the Case
The defendant had published on Facebook a number of comments concerning a political initiative promoted by a municipal councilor. The injured party subsequently filed a criminal complaint alleging defamation.
The Trial Court found the statements to be defamatory, holding that they attributed a lack of culture and education to the injured party. However, it acquitted the defendant on the grounds of the particular tenuousness of the offence and, at the same time, ordered her to pay damages to the injured party, who had joined the criminal proceedings as a civil claimant.
The Protected Legal Interest Under the Offence of Defamation
The legal interest protected by the offence of defamation is an individual’s honor as reflected in the esteem in which that person is held by society.
More specifically, the protected interest is the individual’s reputation, understood as the body of esteem, trust, credibility and social standing that a person has acquired within society and in the community in which he or she lives and operates on a daily basis.
The Injurious Event Required for the Offence of Defamation
The harmful event contemplated by the offence of defamation consists in the communication of, and the consequent perception—or at least perceptibility—by no fewer than two third parties of an offensive statement that is specifically directed, not merely in the abstract but in concrete terms, at harming the reputation of an identifiable individual.
This harmful event is regarded as psychological in nature, as it lies in the sensory and intellectual perception by third parties of the allegedly defamatory expression.
Furthermore, the words used must attribute unfavorable qualities to the injured party or otherwise cast that person in a negative light. The statement must contain a disparaging content of such a nature that, according to commonly accepted social standards, it is perceived as detrimental to the reputation of the person concerned.
The Balancing Exercise Between the Right to Reputation and Freedom of Expression
The Supreme Court approached the case in a manner consistent with the principles enshrined in the Constitution, which safeguards freedom of thought and, more broadly, freedom of expression. In doing so, it reaffirmed the established principle that the right to honor and personal dignity must be balanced against the right to freedom of expression.
According to the Court, this balancing exercise should favor freedom of expression where the statement alleged to be defamatory simultaneously satisfies three well-established requirements: truthfulness, relevance to a matter of public interest, and restraint in the manner of expression.
The Ruling of the Supreme Court
The Supreme Court held that, in the case at hand, the impugned statements were devoid of any expressly disparaging content capable of harming the reputation of the injured party. Although they conveyed disagreement and surprise, they were not, according to commonly accepted social standards, capable of attributing to the injured party qualities objectively detrimental to his cultural standing or personal reputation.
In light of the principles outlined above, the Court found that the statements did not ascribe any specific shortcomings to the person concerned through deliberately denigratory language capable of infringing his reputation and personal image. Nor did they reveal any intention on the part of the defendant to convey offensive remarks.
Accordingly, the Supreme Court quashed the challenged judgment without remittal, holding that the alleged offence had not been made out, and ordered the revocation of the civil awards previously granted to the civil claimant.
The law firm Dal Pozzo in Milan provides legal assistance to private individuals, public entities, and businesses, including matters related to to cybercrimes.