Defamation on social networks: between freedom of speech and criminal liability
1. Introduction
In today’s world, where social networks and instant messaging tools (primarily Facebook and WhatsApp) are everyday means of interpersonal interaction, it is important to highlight how they can expose users—often unknowingly—to behaviors that may be significant from both a criminal and civil perspective.
Indeed, posting messages or content that harms another person’s reputation could constitute the crime of defamation, exposing the author to criminal penalties and, at the same time, obliging him/her to compensate the damages caused to the injured party.
2. Article 595 of the Italian Criminal Code
Article 595 of the Italian Criminal Code punishes with imprisonment or fines “anyone who, communicating with multiple people, offends another person’s reputation.” Furthermore, if the offense is committed “by means of the press or any other form of publicity“, the penalty is aggravated.
To commit the crime of defamation, it is necessary for messages or information harmful to a person’s reputation to be spread when that person is not present (a situation commonly encountered in the use of social networks or instant messaging tools).
If, on the other hand, the offended person is “present” when the defamatory message or information is spread, this would constitute the different offense of “insult” (which is no longer a crime under Italian law, having been decriminalized, meaning the author can only be held liable in Civil Court for compensation purposes).
3. Facebook and criminal liability
The Italian Supreme Court of Cassation firmly holds that Facebook is a “means of publicity” under the definition in Article 595 of the Italian Criminal Code, as it allows for the broad dissemination of messages, posts, or comments that harm the reputation of absent individuals. Consequently, the author would be held criminally responsible for defamation under the most severely sanctioned form.
This criminal liability exists not only when offensive messages, posts, or comments are disseminated via “public” posts but also when they are shared within a “group” of “friends,” provided the element of widespread dissemination is present.
4. WhatsApp and criminal liability
Similarly, concerning the instant messaging tool WhatsApp, the Italian Supreme Court of Cassation considers the crime of defamation to be committed when an offensive message is sent in a chat or “group” to multiple people, in the absence of the offended party.
In such cases, the aggravating factors must be assessed, including the number of recipients, the actual spread of the message, etc.
5. Civil liability and damages
In any case, apart from the criminal relevance of the defamatory conduct, the unlawful action can always form the basis of a civil claim for compensation, due to the harm caused to the reputation, honor, and personal dignity of the individual who was the recipient of the defamatory words.
6. Freedom of expression and legal limits
Ultimately, the freedom to express one’s thoughts (recognized and protected by Article 21 of the Italian Constitution) encounters a strict limit in the protection of another’s reputation. When this limit is exceeded, the conditions are met for the offense of defamation to be established. In the evaluation process, the Penal Judge will place particular emphasis on the “restraint” (or lack thereof) of the expressions used, meaning their ability (or lack thereof) to constitute a true “attack” on another person’s reputation.
7. Conclusions
The use of social networks and instant messaging tools (primarily Facebook and WhatsApp) requires users to have a deep awareness of the legal consequences of their actions. The dissemination of online content can involve criminal offenses and, at the same time, lead to compensatory liability (potentially considerable).
In this context, it may be highly advisable to consult your trusted Lawyer before posting content online, as the subsequent dissemination could lead to a criminal offense.
Likewise, it may be appropriate for anyone who believes they have been defamed to consult their trusted Lawyer. The Lawyer can assist in gathering the necessary evidence and guide the person within the strict three-month period mandated by Italian law for the criminal prosecution of the offender (in fact, under Article 124 of the Italian Criminal Code, “the right to file a complaint cannot be exercised after three months from the date of learning of the fact constituting the crime“).
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