Nowadays the protection of our online identity and reputation runs on the edge of social networks. Indeed, over the last few months news came one after another about judicial measures on defamation occurred via the Internet, more and more often regarding cases originating from communication and interaction among web surfers within the environment of social networking sites.
Such “viral” nature (to use a term grown increasingly popular among the internet users) of the “social network environment has now been ratified – after a number of decisions issued by many lower Courts – also by the Italian Supreme Court of Cassation with the decision no. 12761/14 of its First Criminal Division, which indeed had a huge echo in media reports all over the country.
In particular, the decision of the Supreme Court has finally clarified certain issues on which, so far, lower Courts seemed to lack sufficient confidence, revealing themselves as to being somehow “puzzled” by the peculiarities of the means of communication used by web-surfers in the “social” environment in comparison to the generalized reality of the internet, which Courts had already widely dealt with in respect of e-newspapers at first and then of blogs, forums and traditional sharing and aggregation portals.
By way of example, at times some Courts had hold that defamation may be excluded tout court – due to the lack of the essential element of the “communication with several people” required by Article 595 of the Italian criminal code – because of the virtually “closed” environment in which communication and interaction take place within social networks compared to the generically “open” Internet environment ”: for instance, that was the position of the Court of Gela, according to which “a private virtual conversation carried out through Facebook (and similar social networks) must be deemed to take place by and between selected persons”, and therefore communication cannot be said to be “particularly diffusive and public”, by virtue of the fact that access to the pages of a Facebook profile requires the consent of the profile owner, who authorises, from time to time, only the inner circle of persons that he/she wishes to select (sic, e.g. Court of Gela, decision no. 550, 23.11.2011).
Further doubts were raised, on other occasions – exactly in view of the fact that social network allow subscribers to limit, ab origine or on the occasion of single posts and comments, the circle of potential recipients of communications (and thus of people put in condition to make use of messages and/or to suffer their possible prejudicial effects) – as to the possibility to qualify a social network as “another publicity medium” for the purpose of application of the aggravating circumstances provided for under Article 595, third paragraph, of the Italian criminal code that is traditionally applied to defamation occurring through the press or through the Internet (meant in the broad sense). With respect to such issue, lower Courts at times dedicated almost “pathological” attention in their respective de facto analysis of the cases, to circumstances such as: the number of “friends” allowed to access a given profile; the specific, more or less restrictive, privacy settings relating to the same profile; the use of “tags” eventually connecting the allegedly defamatory message to the allegedly offended party and enabling the message itself to leave the sphere of control of the profile owner, thus becoming available to the general public; the number of views or comments raised by the defamatory post, and so on (in this sense, see, by way of example: Court of Monza, Decision no. 770 of 2.3.2010; Court of Grosseto, Decision no. 97 of 24.5.2012; Court of Livorno, Office of the Preliminary Investigations Judge, Decision no. 38912 of 2.10.2012).
Now, with its judgement no. 12761/14 the Supreme Court has substantially brought the case of defamation through social networks within the boundaries of the general offence of aggravated defamation perpetrated through the use of a publicity medium, ratifying in the first place that the publication of a defamatory phrase in a Facebook profile “makes it accessible to an indeterminate multitude of people by virtue of the sole registration to the social network and, even as concerns news restricted to «friends», to a wide circle of people” ; therefore, according to the Court, posting a similar message to one’s own profile establishes the misconduct provided for by Article 595 of the Italian criminal code, which postulates the simple “will to make the phrase known by more persons, even only two”, and gives no relevance to “the circumstance that in reality the phrase has been read by one person only”. Therefore, for such reasons, the Supreme Court concluded that the application of aggravating circumstances pursuant to Article 595, third paragraph, of the Italian criminal code cannot be denied.
In this perspective, the Supreme Court seems to have sanctioned, with this latest decision, that the approach to be followed when it comes to defamation via social networks is the one already outlined by such Court with regard to blogs, since also a social network may be defined as a “web space where web surfers gather, who share common interests, with the consequent spreading of the contents of the blog itself” (sic, Supreme Court, Fifth Criminal Division, Decision no. 32444 of 25.7.2013).
After having brought the case within such boundaries, the Court has applied the principles already consolidated on defamation through the press, holding that it is enough that the reference to the offended party, even if implied, be sufficiently unambiguous to the circle of recipients, there being no need, for such purpose, of an express indication of the name of the same .
In light of the foregoing, the decision at issue represents a much-desired achievement, since the Court has at least attempted to dissolve the initial “aura” of mystery and newness associated to the new Facebook instrument and to its typical functions.
Nonetheless, not all the issues in the field may be deemed to be well-settled. Indeed, further case-law developments are likely to be expected in the next months in relation to the protection of online reputation through social media, since the Supreme Court and, even before, lower Courts are yet to examine issues such as the possible grounds for establishing collusion in the offence of defamation (with the consequent impacts on civil damages claims ) in relation to the hypothesis that third parties may increase the detrimental impact of defamatory messages with comments and “likes”, as well as, outside the Facebook environment, the peculiarities of Twitter as a further new means of communication, which, as it is known, is characterised by additional specificities in connection with publication, re-publication and sharing of media and social contents.