On 12 August, the Court of Cassation filed a ruling stating that the publication of an offensive video on the social network Tik Tok constitutes the offence of aggravated defamation by means of advertising.
The facts
The defendant was found guilty of the offence of aggravated defamation by the Trial Court and the Court of Appeal for having published, on the social network TikTok, through a profile attributable to her, videos in which she uttered offensive expressions against the injured party.
She therefore filed an appeal to the Court of Cassation, arguing, inter alia, as a ground of challenge, the erroneous assessment of the configuration of the offence of defamation. According to the appellant, it was not a case of defamation but of insult, a decriminalised offence: the videos had been streamed live via the TikTok platform and were viewed by multiple users, including the injured party; consequently, the (even if virtual) presence of the injured party, together with that of third parties and the offender, would give rise to the civil tort of aggravated insult rather than the criminal offence of aggravated defamation.
The traditional distinction between defamation and insult
The presence of the injured party is the decisive criterion for distinguishing defamation from insult: where the injured party is present at the time the offensive statements are made, the offence of insult is constituted, whereas defamation is made out when the injury to another’s reputation occurs through communication with multiple persons in the absence of the injured party. While in the case of insult the communication, by whatever means effected, is directed at the offended person, in defamation the injured party remains extraneous to the offensive communication exchanged with several persons and is not placed in a position to respond to the offender.
The concept of presence in the immaterial dimension of the internet
Traditionally, the concept of presence necessarily implies the physical presence, in unity of time and place, of the injured party and third persons. Today, modern technological systems require a specific redefinition of this notion, as they make it possible to create situations in which a virtual presence of the addressee of the offensive statements may be identified, substantially comparable to physical presence.
For this reason, the Supreme Court held that a case-by-case assessment is required: where the offence is uttered, for example, during a remote or online meeting among several persons simultaneously connected, in which the injured party also participates, the conduct falls within the offence of insult committed in the presence of multiple persons; conversely, where written or voice communications are addressed to the injured party and to other persons who are not simultaneously present, the requirements of defamation are met, as in the case of sending e-mails or messages containing offensive expressions against the injured party in a chat shared with other users, where the injured party did not perceive them immediately because she was not connected at the time of their delivery.
The dividing line between defamation and insult in the virtual world
The concept of the injured party’s presence where the offence against honour or reputation is committed through technological systems was thus clarified by the Supreme Court: the offence of defamation is constituted where the possibility of direct interaction between the author and the addressee of the offence is lacking, leaving the latter deprived of any possibility of reply, or where it is not possible to establish between the offender and the offended party a direct relationship, whether real or virtual, that ensures the latter an immediate adversarial exchange with the possibility of responding.
The application of the principle of law to the case at hand
The Supreme Court concluded that, in the case of the publication of an offensive video on TikTok, the presence of the injured party must be excluded, since the latter is undoubtedly deprived of the possibility of responding immediately to the offensive statements.
The Court of Cassation further observed that, at the time the video was streamed live, the fact that the injured party may have watched it does not allow her presence to be established, since the mere possibility—albeit provided for—of posting comments in real time on the images and statements made in the video constitutes a limited form of interaction that does not place the offender and the offended party in a direct and equal relationship and therefore does not ensure an immediate, real, and effective adversarial exchange in forms capable of guaranteeing substantial equality of arms.
Moreover, the incriminated videos remained available on the social media platform thereafter and were viewed and shared by numerous users.
The outcome of the appeal to the Court of Cassation
The Court of Cassation dismissed the appeal and ordered the appellant to pay the costs of the proceedings.
The law firm Dal Pozzo in Milan provides legal assistance to private individuals, public entities, and businesses, including matters related to cybercrimes.