Continuing on the topic of crimes committed daily on the internet, and seeking to create interest in the reading from the outset, we affirm that “when the person insulted is online, the crime of defamation does not apply”.
But let’s proceed step by step.
With this article, we aim to analyze a case that concluded favorably for the defendant.
The sentence in question was issued by the Supreme Court of Criminal Cassation, Section V, on December 2, 2021, number 4462. This case, which was resolved by the judges of the Palazzaccio, contains an interesting argument in favor of those who are involved in the crime of aggravated defamation committed on a social network such as Facebook, LinkedIn, or many others.
The underlying principle
if the offense is committed while the person insulted is online, there is no crime of defamation.
This case is remarkable because the legal proceedings were very troubled. The defendant was convicted twice (both at first instance and on appeal) of the crime of aggravated defamation. However, he was completely acquitted by the Supreme Court.
As you can imagine, it was not easy for the defendant and his defense team to prevail. The negative effects of two sentences weigh heavily, both in terms of criminal penalties (the maximum penalty for the crime of aggravated defamation, the subject of this article, is three years) and in terms of civil consequences, as far as civil provisions in favor of the offended party are concerned.
THE FACT – HOW WAS THE CRIME OF DEFAMATION ASCERTAINED?
The investigatory phase of the trial was also quite complex, due to the technical computer checks carried out, and during the trial it was ascertained that:
“the defendant published on a chat, where the offended party was also present, together with other users, a series of offensive phrases towards the offended party.”
The importance of a team of experienced lawyers, with the assistance of computer consultants, as well as the defendant’s tenacity in resisting until the third degree of judgment, led to a result, as already anticipated, diametrically opposed to that obtained in the first two degrees of judgment: acquittal from the crime of defamation.
In order to simplify the reading and without weighing down with “too technical” concepts, while still listing the various reasons/exceptions raised in Cassation, we want to highlight the part of the appeal that specifically convinced the Supreme Judge.
THE DEFENSIVE STRATEGY.
The defense strategy developed for the accused revolves around a fact that went unnoticed by both the first and second judges. Specifically, the “VIRTUALITY” of the place where the crimes are committed was not considered: that is, the internet. A parallel world, virtual, but with real effects.
Indeed, the accused’s defense argued that “there is no defamation when the insulted party is online.”
The arguments developed in the judgment are highly technical, but we will try to make the legal mechanisms clear, focusing mainly on the above factual argument.
THE FIRST GROUNDS FOR APPEAL – ON THE VALIDITY OF THE EVIDENCE.
The exception concerning the validity of the evidence of the crime was very astute. Specifically, the accused’s defense contested that “the mere printing of screenshots taken from the offended party and the police witness would not be sufficient to prove that the accused had published the defamatory messages.”
The accused’s technical consultant was tasked with analyzing the accused’s profile and that of another participant in the conversation. The analysis revealed nothing, as the checks had yielded negative results.
In particular, it emerged that no chat had been archived or deleted from the accused’s profile. The offended party, for their part, had always denied authorization to access their profile, which was intended to verify whether the incriminated post was there.
However, it was not this that convinced the judges but rather another aspect of the case.
THE SECOND GROUND FOR APPEAL.
The second ground for appeal complains of the violation of articles 594, 595 of the Italian Criminal Code, as well as articles 192 and 187 of the Italian Code of Criminal Procedure, in addition to the lack, contradiction, and manifest illogicality of the reasoning regarding the qualification of the act as defamation rather than insult.
To facilitate the reader’s understanding, it should be noted that there is the offense of insult (provided for by article 594 of the Italian Criminal Code) and the more serious offense of defamation (article 595 of the Italian Criminal Code).
Certainly, one may wonder what is the difference between insult and defamation.
Unlike insult, defamation occurs in the absence of the recipient of the offense and in the presence of at least two other people.
With these elements, therefore, the judicial implications of the case at hand begin to emerge.
THE THIRD GROUND FOR APPEAL.
Finally, the third ground for appeal complains of the violation of articles 595, 599 of the Italian Criminal Code, as well as articles 192 and 187 of the Italian Code of Criminal Procedure, in addition to the lack of contradiction and manifest illogicality of the reasoning. It is stated in the appeal that the defendant acted in a state of anger determined by the behavior of the offended person.
This ground will be absorbed by another and is therefore of no interest.
Validity of the appeal: if the insulted person is online, there is no defamation.
Therefore, let’s explain why the judges considered the defense’s arguments valid, particularly the second ground of appeal, namely, the online presence of the insulted person.
Essentially, the judges found the appeal decision deficient in terms of motivation concerning the failure to classify the act as an insult rather than defamation. We clarified before, in the factual part, what the circumstances of the case were: the insulted person was online and had received offensive comments. Therefore, the difference between the two crimes is fully understood.
It is crucial to highlight that in the case at hand, the victim was “online” and participated in the virtual discussion.
TECHNICAL DIFFERENCE AND IN-DEPTH ANALYSIS BETWEEN INSULT AND DEFAMATION.
At this point, the Supreme Court judges referred to a significant precedent, namely, the sentence no. 13252 of March 4, 2021, which, when discussing the insulting or defamatory nature of sending emails to multiple recipients, including the victim, interestingly outlined the concrete situations regarding the various communication tools that can lead to an offense under Art. 594 or Art. 595 of the Italian Criminal Code.
Let us summarize:
If the offense is directed at a person
• present in the conversation, it is an insult even if other people are present
• distant, it is an insult only if the offensive communication occurs only between the author and the recipient
On the other hand, if the communication from a distance
- is addressed to other people about the victim,
- it constitutes defamation if the offense concerning an absent person is communicated to at least two people (present or distant), it always constitutes defamation.
It is evident that the meaning of contextual presence between the offender and the recipient is difficult to define, given the new technologies.
Presence does not have to be in the same place and at the same time. New technologies allow for substantially comparable situations.
For example, think of situations of co-presence during a conference call, audioconference, or videoconference. Even if the participants are not physically in the same place, they are all “present.”
THE PRINCIPLE OF ACQUITTAL FROM THE CRIME OF DEFAMATION in case the insulted party is online.
The previous sentence that the Court of Cassation judges cited to resolve the case establishes that:
“The numerous applications currently in use for communication between physically distant individuals do not substantially modify the line of discrimination between the two figures as outlined above, only requiring particular attention to the specific characteristics of the program and the functions used in the specific case.”
It is known to those who use them that many applications allow users to use technological tools that facilitate communication between two or more parties: instant messaging (written or vocal), video calls, “VoIP” calls (telephone conversations made using an internet connection without passing through the analog line).
Furthermore, different platforms have been developed to convene remote meetings among a number, even significant, of people present virtually. The same platforms allow you to write messages during the meeting directed to all participants or to one or some of them.
conclusion
For this reason, the mere reference to a generic definition (chat, call) or to the commercial name of the program is, in itself, meaningless and fraught with misunderstandings unless accompanied by an indication of the precise characteristics of the communication tool used in the specific case.”
Therefore, according to the Court of Cassation, to arrive at a distinction between the two crimes, that of insult under art. 594 of the Criminal Code and that of (aggravated) defamation under 595 c.p.c., the situation of the presence, even if virtual, of the offended party must be evaluated. This is clearly the data to be evaluated. And it will have to be done case by case.
As has been repeatedly emphasized, therefore, in this case, the online presence of the insulted party was ascertained, and therefore, the crime should be classified as insult rather than defamation.
NOTE BY LAWYER ANDRIULO – if the insulted party is online, it is not aggravated defamation.
In light of what has been narrated so far, in cases where the offense is committed during a meeting (remotely), among several people simultaneously connected, and the offended party is also participating, the hypothesis of insult committed in the presence of several people will always be present.
Therefore, not the more serious crime of defamation.
It should be noted that insult, originally provided as a crime by Article 594 of the Criminal Code, has “much lighter” sanctioning effects. This is because the crime has been committed in the presence of several people.