Aggravated defamation what to know

The crime of aggravated defamation, art. 595 c. 3 c.p., within social networks such as Facebook, Twitter, Youtube, LinkedIn, and many other social networks is becoming more and more frequent.

Such computer tools have undoubtedly radically changed and facilitated communication and interaction between people, but it’s not all sunshine and rainbows. In fact, these tools are not exempt from criminal risks.

The purpose of this article is to explain in simple words the regulatory prerequisites for the crime of defamation (ex art. 595 c.p.), and in particular, aggravated defamation (ex art. 595 c. 3 c.p.), and what determines its non-consumption.

Some of the judgments that best represent the phenomenon that daily, whether intentionally or not, spreads on the virtual web will be promptly analyzed, without the presumption of exhaustiveness and completeness.

Analysis of the crime of defamation – offensive statements.

Posting one’s thoughts, an emoticon, or a photo on one’s own or someone else’s social profile would seemingly be the exercise of one’s own right.

Specifically, reference is also made to what is provided for in Article 51 of the Italian Criminal Code (exercise of a right or performance of a duty). Others also frame this activity as exercising the right to criticize. But what is the limit in expressing one’s free thoughts and the crime of aggravated defamation according to criminal case law?

What does the criminal code provide for in terms of defamation?

In simple terms, the crime of defamation (Article 595, paragraph 1, of the Italian Criminal Code) occurs when someone knowingly offends another’s reputation by communicating with multiple people. The penalty provided for is imprisonment for up to one year or a fine of up to €1,032.

By reading the subsequent paragraph 3 of the same article, it essentially states that the crime is aggravated if the offense is committed through the press or other means of publicity. In this case, the penalty is imprisonment for six months to three years or a fine of no less than €516.

The framework of the crime of defamation under Article 595 of the Italian Criminal Code.

In order to begin tracing the boundaries and limits of the possibility of expressing one’s thoughts, we explain why offending on the internet, more precisely within a social network, leads to the more serious offense under Article 595, paragraph 3 – aggravated defamation. The case law has ruled that “the communication of defamatory content through a user’s wall, viewable by all those who have access to the profile, constitutes aggravated defamation under Article 595, paragraph 3 of the Italian Criminal Code, in terms of the offense caused by any means of publicity other than the press, since the conduct carried out in this way is potentially capable of reaching an indeterminate, or at least quantitatively appreciable, number of people.”

Therefore, although a social network primarily represents a business model, according to the majority view of criminal case law, it is defined as “a public place.” Not a simple private “chat” between two parties, but as mentioned, a space, albeit virtual, open to many.

That being said, and without wanting to make the reading more burdensome, deferring the analysis of the various scenarios in which the crime is committed to other articles, there is a greater interest in providing a prompt response to the scenarios in which the crime of aggravated defamation is not committed.

The defense for not being convicted of aggravated defamation.

From the above premises, it would seem that it is easier to “fall” into the crime of defamation on social networks, aggravated as described above, than to exercise one’s own right to express one’s own thoughts or to exercise a legitimate right to criticism.

Fortunately, it is not exactly so! On this point, the Supreme Court has provided a sort of vademecum to verify, from time to time, whether all the prerequisites exist to arrive at the declaration of the existence of the crime of aggravated defamation or to declare its non-existence. Well, the Judge analyzing a case of defamation via a website took care to “meticulously establish” the balancing between the so-called para-ordinary rights, namely, the right to reputation and honor on the one hand, and the right to freedom of expression on the other.

Therefore, the criminal Judge to whose discretion the facts are referred will have to verify, from time to time, the existence of three concurrent requirements to establish whether the crime has been committed or not!

• public interest in the dissemination of the news or opinion;
• the putative truth of the facts narrated;
• the moderation of the expressions used in the writing.

Do all of these characteristics have to be present?

It is important to note that their concurrent presence precludes harm to reputation; conversely, the absence of even one of them constitutes its elements.

So yes, all three characteristics must be present to avoid conviction.

The reference judgment is number 27592 of October 29, 2019, which has become a benchmark for legal practitioners. In particular, the Supreme Court clarified that with regard to the alleged truth of the reported facts:

“the defense of putative truth of the reported facts, capable of excluding the liability of the author of an offensive writing on someone else’s reputation, only exists on condition that:

a) the author has carried out every diligent investigation to verify the plausibility of the facts reported;

b) the author has clearly and transparently accounted for the source from which he drew his information and the context in which, in that source, they were inserted;

c) the author has not withheld collateral facts capable of depriving the reported facts of meaning or modifying their meaning;

d) the author, in reporting even true facts, has not used allusive, insinuating, or deceptive tones.”

Therefore, it is not easy to determine a priori how much of what is alleged in fact. The parties to the proceedings (defendant/offended party) will both be heard (technically called “escusse”), and only then will it be possible to establish whether the crime has been committed or not.

However, it is important to know how to behave when leaving comments.

Conclusion

In conclusion, it is argued that although technological tools have given and continue to give ample space to freedom of access to information and freedom of opinion, they have done little in terms of promoting the correct use of these tools. It is hoped that the content of this article will be helpful to those who are interested in the subject and to a more conscious use of social networks.

Article by Leonardo Andriulo – attorney at law
Managing Partner ANP Legal – trusted lawyers
www.anplegal.eu – 0831.811647 (also available on WhatsApp).