26 Sep online defamation

The progressive spread of the Internet, dei social network, of sharing platforms and messaging services has profoundly changed the ways in which people communicate and spread information, determining significant consequences also on a legal level and imposing a continuous evolution of the tools for protecting reputation. The ability to publish a text in a few seconds, an image, a video or a comment and making it potentially accessible to an indeterminate number of people has in fact enormously expanded the diffusion capacity of communications, making the topic of so-called online defamation particularly current. This expression refers to reputation-damaging conduct carried out via the Internet, via websites, blog, forum, social network, video platforms, comment systems e, more generally, through digital communication tools. The digital nature of the medium does not determine, however, the birth of an autonomous type of crime, since the conduct carried out via the Internet can be traced back, when the conditions are met, to the crime of defamation provided for by art. 595 the Penal Code, with the possibility of applying the aggravating circumstance contemplated by the third paragraph of the provision when the offense is caused through a means of advertising. L’art. 595 c.p. punish, indeed, whoever, communicating with more people, offends the reputation of others, when the offended person is not present. The structure of the case allows us to identify some fundamental elements, represented by the offense to reputation, from the communication of the offense to multiple people and from the absence of the offended person. Reputation must be understood as the consideration and image that a person enjoys in the community or in the social and professional environment in which he operates and can concern both the personal and work spheres., entrepreneurial, commercial or public. It is necessary for the configuration of the crime, Furthermore, that the offense is brought to the attention of at least more people other than the offended person, an element that takes on particular importance in the digital context, since publishing content on an Internet platform can make it accessible to an extremely large and potentially indeterminate number of recipients. The distinction with respect to insult, today no longer foreseen as a crime following the decriminalization carried out by the Legislative Decree. n. 7 of the 2016, continues to be based mainly on the different methods of communication: while the insult concerned the offense aimed directly at the person present, defamation presupposes the absence of the offended person and the communication of the offense to third parties. It takes on particular relevance, in the field of digital communication, the third paragraph of the art. 595 c.p., which provides for a specific aggravating circumstance when the offense is caused through the press or any other means of advertising. The jurisprudence of the Court of Cassation has long clarified that the publication of defamatory content through a social network can constitute aggravated defamation pursuant to art.. 595, comma 3, c.p., due to the particular diffusive capacity of the medium. With sentence no. 4873 of February 1st 2017, the Fifth Criminal Section of the Court of Cassation reiterated that the publication of offensive expressions on the Facebook wall constitutes a method of communication suitable for reaching an indeterminate number of people and can therefore constitute the aggravated offense provided for by art.. 595, comma 3, c.p. A similar principle had already been stated by sentence no. 8328 of March 1st 2016, with which the Supreme Court had recognized the possibility of aggravated defamation in relation to offensive content published through Facebook. The legal qualification of the conduct does not depend, therefore, by the name of the platform used, but on the concrete characteristics of the means of communication and its effective diffusion capacity. Facebook, Instagram, TikTok, X, YouTube and similar platforms can therefore constitute tools through which to carry out aggravated defamation, when all the elements required by law are present. The public or otherwise widely accessible nature of communication represents a particularly significant element, because it determines a much higher capacity for the spread of the offense compared to that normally typical of a communication limited to a few subjects. The Court of Cassation also clarified that, for the purposes of establishing defamation, it is not necessarily essential that the offended person is expressly indicated by name and surname, it being sufficient that it is identifiable on the basis of the content of the communication and the circumstances of the specific case. With sentence no. 10762 of the 25 March 2022, the Court reiterated that a post published on Facebook can constitute the crime of aggravated defamation even when the name of the offended person is not expressly indicated, provided that the recipient of the offense is in any case identifiable, even within a limited circle of people. This principle takes on particular relevance in the world of social networks, in which users can use innuendos, nicknames, professional references, descriptions of episodes or other indirect elements to identify a particular person without expressly naming him. For the purposes of liability, the overall meaning of the message and the context in which it is published must therefore be assessed, verifying whether the recipients of the communication are actually able to understand who the offense refers to. One of the most delicate aspects of the matter concerns the relationship between defamation and freedom of expression of thought. L’art. 21 of the Constitution recognizes everyone's right to freely express their thoughts through speech, written and any other means of dissemination, lies the art. 10 of the European Convention on Human Rights protects freedom of expression. This freedom also includes the right to express criticism, negative evaluations and strongly unwelcome opinions, but it does not constitute an unlimited right to damage the reputation of others. The so-called right of criticism therefore takes on particular importance, which jurisprudence has traditionally subjected to the requirements of relevance, of continence e, when facts are represented, of the truth of the historical fact underlying the evaluation. To the criticism, by its nature, it implies a subjective evaluation and can therefore also be harsh and severe, but it must maintain a connection with the object of the discussion and cannot turn into gratuitous personal aggression or the attribution of untrue facts. The Court of Cassation underlined, with sentence no. 8898 of the 18 January 2021, the importance of also evaluating the communication methods of social networks, in which the language used and the particular ability to spread the message can impact the overall evaluation of the conduct. It is therefore necessary to distinguish the simple expression of an opinion from the attribution of a specific fact. Claiming that a professional performed an unsatisfactory job or that a service received was terrible constitutes, at least in general terms, the expression of a personal evaluation; claim instead that that professional has falsified documents, committed a crime, having stolen money or engaged in illicit behavior means attributing to him specific facts that are susceptible to verification and potentially capable of seriously damaging his reputation. The difference between judgment and fact takes on particular importance in online reviews, in comments on social networks and in forums, in which the user's freedom to express a negative evaluation must be distinguished from the attribution of illicit or dishonorable behavior that does not correspond to reality. A further problem concerns communications carried out through WhatsApp groups, private chats and other messaging systems. Not all communications made through digital tools are in fact automatically attributable to the aggravated form of defamation through advertising. The evaluation must be carried out considering the number and nature of the recipients, the structure of communication e, mostly, the presence or absence of the offended person in the conversation. The Court of Cassation, with sentence no. 36193 of the 10 May 2022, highlighted the need to concretely verify whether the offended person was present, even virtually, in the conversation, since the configurability of defamation depends on the concrete method through which the offense is communicated. The digital context therefore does not allow us to ignore the concrete structure of communication: a private conversation between two people has different characteristics than a post published on a page accessible to thousands of users or a message spread within a group made up of numerous participants. The issue of the moment in which the crime takes place is also particularly relevant. Defamation is an event crime, in the case of publications made via the Internet, jurisprudence has identified the moment of consumption in the phase in which the offensive content becomes concretely accessible to third parties. The Court of Cassation, with sentence no. 1370 of the 29 November 2022, he reiterated that, in the case of defamation carried out via the web, the crime is committed at the moment of the sentence, the harmful image or content becomes accessible to third parties. This is particularly relevant also with reference to the complaint and the starting date of the terms established by law. The subsequent permanence of the online content does not automatically determine a sort of indefinite permanence of the crime, having to distinguish the moment of consummation of the original conduct from any subsequently independently relevant conduct. The ability to share, commenting and republishing content also introduces the problem of subject position, despite not being the original authors, contribute to its further diffusion. Responsibility must be assessed individually, because the simple display of content is not equivalent to its diffusion, while a new publication, a sharing accompanied by further offensive expressions or behavior consciously aimed at amplifying the scope of the offense can take on a different legal relevance. Also the position of site administrators, blogs and platforms must be carefully evaluated. The discipline provided for by the art. 57 c.p. for directors or deputy directors responsible for periodicals, it cannot be automatically extended to any manager of an Internet site. In fact, jurisprudence has distinguished actual online newspapers from common blogs, forum e siti Internet, excluding an automatic comparison between these instruments. The Court of Cassation, with sentence no. 5912 of the 12 February 2026, reiterated the automatic inapplicability of the art. 57 c.p. to the manager of a common Internet site. That doesn't mean, however, that the manager is always immune from liability, since its possible liability must be assessed on the basis of the concrete conduct carried out e, where the conditions are met, according to the general rules on complicity in the crime. The issue relating to comments published by users is also particularly interesting. The mere fact of administering a platform does not automatically determine criminal liability for every content published by third parties, especially in the absence of concrete prior knowledge of the material. The Court of Cassation, with sentence no. 45680 of the 21 September 2022, addressed the issue of the responsibility of the manager of a blog for defamatory comments published by third parties, clarifying that the mere role of administrator is not sufficient, in itself, to constitute criminal liability. The issue was further addressed by the Court of Cassation in 2026. With the ordinance of the First Civil Section n. 22999 of the 10 July 2026, the Supreme Court attributed particular importance to the manager's concrete knowledge of the defamatory content and its possible failure to remove it. The principle takes on particular importance because it distinguishes the absence of a general preventive obligation to control all content published by users from the situation in which the manager is actually informed of the existence of harmful content and, despite this knowledge, consciously choose to keep it online, allowing its further diffusion. Alongside criminal liability, defamatory conduct can lead to civil liability and consequently the obligation to compensate for damages. The main regulatory reference is art. 2043 c.c., according to which any intentional or negligent act that causes unjust damage to others obliges the person who committed the act to compensate for the damage. In the case of defamation, prejudice can concern both the personal and professional dimensions, commercial or entrepreneurial nature of the interested party. The diffusion of the content constitutes one of the elements that can take on importance in assessing the severity of the lesion: in fact, a statement made to very few people has a different diffusion capacity compared to content published on a social profile followed by thousands of users. For the purposes of quantifying the damage, the severity of the expressions used may be relevant, the social and professional position of the offended person, the dissemination of the content, the duration of your stay online, any repetition of the conduct and the consequences actually produced. Particular attention must be paid to damage to professional reputation, since a defamatory publication can affect the credibility of a professional, of a company or a worker and can be indexed by search engines, continuing to be available long after the original publication. The digital dimension can therefore amplify and prolong the effects of the lesion, making the timely acquisition of evidence particularly important. In case of online defamation, indeed, it is advisable to preserve the disputed content through screenshots, URL, date and time of publication, name of the profile used, comments from other users, number of shares and views, any subsequent republications and any further useful element to demonstrate the concrete diffusion of the content. In more complex cases it may be appropriate to use digital evidence acquisition tools suitable for documenting the content present online at a given moment with greater reliability.. Particular attention must also be paid to the identification of the author when the content has been published through an anonymous profile or a pseudonym. Digital anonymity does not automatically make it impossible to identify the person responsible, so long as, in the presence of the conditions established by law, elements can be acquired from the service managers and interested operators. However, the timeliness of the initiative can be important, since the availability of technical data may depend on the storage methods adopted by the individual service provider and on the time elapsed. A further protection tool can be represented by the request for removal of defamatory content. The deletion of material takes on particular importance precisely because of the Internet's ability to preserve and replicate content. Removal, however, does not necessarily involve the elimination of the legal consequences of the publication that has already taken place. Defamation, indeed, takes place when the offense is communicated to third parties and the subsequent deletion of the post does not automatically eliminate the fact that the content was previously made public. The removal may however take on importance in the overall evaluation of the matter, especially with reference to the duration of the stay online and the consequences actually produced. The issue is also linked to the right to be forgotten and the relationship between reputation, protection of personal data, right of reporting and right of information. The possibility of finding information relating to a person through search engines even many years after their publication can in fact produce significant consequences, but the right to be forgotten does not automatically coincide with a right to erasure of any information relating to a person. A balance must be made between the different interests involved, taking into account the nature of the information, of the public interest in its knowledge, of the time elapsed, the relevance of the news and the ways in which it continues to be made accessible. Online defamation must therefore be assessed through a complex balance between protection of reputation and freedom of expression of thought. L’art. 21 of the Constitution protects the right to freely express one's opinions, including critical and negative ones, while the law simultaneously recognizes the person's right to protect their reputation. Not every unwelcome or offensive expression from a subjective point of view therefore necessarily constitutes the crime of defamation: it is necessary to verify the objectively perceptible meaning of the communication, the context in which it was formulated, the person to whom it refers, the nature of the expressions used, their factual basis, if any, the concrete offensive capacity and the method of diffusion. Likewise, it is not sufficient for a person to personally believe certain information to be true to be able to freely disseminate it as a certain fact, especially when it is likely to damage the reputation of another person. The right to criticize cannot in fact be confused with the right to attribute false or unverified facts. Online defamation therefore does not constitute a case extraneous to the ordinary rules of the legal system, but it represents the adaptation of a traditional form of protection of honor and reputation to the characteristics of digital society. The speed with which content can be published, shared and replicated does not transform the Internet into a free zone in which the rules on responsibility disappear. Unlike, precisely the particular diffusion capacity of social networks and digital platforms can determine, in the presence of the conditions established by law, the application of the aggravating circumstance referred to in the art. 595, comma 3, c.p. The very deletion of content after publication does not automatically eliminate liability, just as the subsequent sharing of content may require an independent evaluation of the conduct of the person who contributed to its diffusion. In the case of reviews, of online comments and discussions, It is therefore of fundamental importance to distinguish the expression of an evaluation, also strongly negative, from the attribution of specific and potentially harmful facts. Ultimately, the correct evaluation of a case of online defamation requires an overall examination of the conduct, verifying who published or uttered the contested expression, to whom it was communicated, if the offended person could be identified, what the context of the communication was, what was the diffusion capacity of the medium used, whether the conditions for the right of criticism are met, what the concrete extent of the offense was and what consequences arose from the publication. In an environment in which a single phrase can reach hundreds or thousands of people in a few minutes and remain available online for an indefinite period, the protection of reputation therefore takes on a particularly delicate dimension, in which the traditional principles of criminal and civil law must be applied taking into account the specific characteristics of digital communication.