Under Italian law, a defamed company can obtain protection from both the criminal and civil law.
Article 595 of the Italian Criminal Code (“CP”) states that
“Anyone who offends someone else’s reputation with other people will be punished….” This offence falls into the category of “offences against a person” but the Supreme Court has ruled that protection under this rule should also be extended to legal persons (i.e. companies and other corporate entities).
In certain circumstances, this criminal law protection cannot be invoked if the statement in question is true. This complies with the principle that where the statement is true, the defendant is innocent (exceptio veritatis).
By contrast, article 2598 of the Italian Civil Code (“CC”) grants protection to claimants even where potentially defamatory material is based on truth. Article 2598 concerns unfair competition and states that:
“anyone who spreads discrediting news and valuations about a competitor’s products and activity …”
is guilty of unfair competitive practices.
Articles 2598, 2043 and 2059 govern the law of damages, particularly compensation. As emphasised by the Supreme Court, claims for “non-economic” damages can be brought by companies or other corporate bodies that wish to obtain fair compensation that is linked to the defamation they have suffered.
In this respect, case law recognises that corporate entities are entitled to be compensated for damage caused to their honour, reputation or commercial image. All these considerations are independent of any economic evaluation. The same case law also states that actual damage is not required for a claimant to be entitled to compensation.
We now turn to consider the hypothetical situation where Company A has posted an article on its website stating that Company B has been defrauding customers.
On the assumption that the article was made without any proper basis and was, in fact, defamatory, we consider:
a. what remedies (if any) Company B would have against Company A in Italy; and
b. whether the position would be any different in this jurisdiction if (i) one of Company A's directors (Mr A) had also defamed Company B; or (ii) the article posted by Company A also defamed a director of Company B (Mr B).
In practice, if Company B feels prejudiced by the behaviour of Company A (after a posting of unsubstantiated, defamatory statements about Company B on Company A’s website), Company B can then apply for a court order under Article 595 CP and Article 2598 no.2 CC, and for compensation under Articles 2043 and 2059 CC.
In these specific circumstances, it is important to focus on the fact that websites spread information very quickly among a diverse readership. On this ground both legal academics and case law have considered whether it is possible to regard the publication of information on the internet as being editorial activity, which is subject to stricter standards under Article 596 of CP. The consensus appears to be that these standards should only be imposed where the websites have editorial objectives.
If one of Company A’s directors defamed Company B, this would also give Company B the basis for a legal action against that director.
If Company A also made an equivalent statement against one of Company B’s company directors, that director would be defamed and he could act together with Company B against Company A.