Italy: “Privacy Versus Freedom Of Expression On The Internet: Some Comments From An Italian Perspective”

Last Updated: 2 September 2009
Article by Felix Hofer

1. The rules and the principles involved.

A proper assessment of the problem needs to take into due consideration some truly significant and fundamental principles of the Italian legal system:

  • Section 2 of the Italian Constitution, which grants to any individual the highest level of protection of its so-called "inviolable rights", which comprehend1 the right of having its "intimacy" and "private sphere" respected,
  • Section 21 of the Constitution, which affirms any individual's right to "freely express its thoughts by speech, in writing or through any other mean of diffusion" and which also bans any form of censorship with respect to press,
  • The provisions of Legislative Decree no. 196 of 2003, which govern processing of personal data,
  • Even though indirectly, also Sections 7 and 10 of the Italian Civil Code (granting protection to a person's name and image).

Those rules and principles frequently touch – and some times clash - on each other, especially when related to the Internet, a context characterized by infinite potential and unexpected developments, by social models radically new and in permanent evolution, but also by undeniable risks and an increasing amount of problems.

2. The difficult coexistence between "Freedom of Expression" and "Rules" and "Control".

2.1. Addressing an audience during the recent European Data Protection Day2, the Italian Information Commissioner ("Autorità Garante per la protezione dei dati personali") has stressed the need of achieving a balanced coexistence on virtual platforms between freedom of expression and right to privacy.

While calling for "rules", apt both, to maintain the free and open nature of the Web as well as to grant Net citizens' rights, the Commissioner had to admit that efficient protection of "on-line rights" necessarily implies adequate user consciousness about the many and serious risks present on the Internet.

He therefore felt that "coexistence" could only be achieved by:

  • through an adequate level of awareness about potential uses of personal data made available on the Internet,
  • by promoting efficient means of self-regulation, aimed at diffusing 'responsible behaviour' and at recommending 'accurate selection' with respect to personal (in particular, sensitive) data uploaded to the on-line world,
  • by increased involvement of Providers, who were invited to focus on adequate user information/education and to offer specific technical means for preventing unconditional access of data by search engines or allowing to limit – at least partially – profiles' visibility.

As to the most common risks involved by on-line activities:

  • a recent study indicates that 77% of all employment research is already performed via the Internet, being 35% of candidates' applications turned down based on personal information found on the Web,
  • while the Internet is certainly perceived as a valuable and crucial resource, the public opinion nevertheless tends to be quite 'sensitive' not only about 'what' goes on-line, but also about 'how' information is made available on the Web (recently a press notice, reporting about nurses who had posted pictures of hospitalized patients together with ironic comments, determined both, harsh protest in the public opinion as well as strong reactions from the employer and Public Authorities),
  • in another recent case a teacher found himself on a social network depicted while smoking a cigarette in class and for that faced later on a proceeding before a Regional Administrative Court, which awarded him with a 8.000,00 Euro compensation judgement for damages procured to his School Administration's image3.

2.2. Periodically lawmakers, approached by various lobbies, feel also necessary to address the issue of stricter Internet control. Usually the pressure on lawmakers comes from groups advocating legislative reaction directed to protect minors on-line, to fight pedo-pornography, to prevent bullying/harassing attitudes (e. g. stalking) or to achieve more efficient protection of IP rights on the Internet.

In 2008 an intense public debate arouse with respect to a controversial bill, which aimed at introducing tighter control over social websites and to the purpose intended:

  • to impose on access (not hosting or content) providers a specific monitoring obligation over on-line content,
  • to entitle the Home Department to block illegal on-line content through cease and desist injunction issued by courts and to order access providers to adopt filter systems (little thought was deserved to how the blocking of specific web pages/sections would be achieved from a technical perspective; the problem was simply "shifted" to the indications of a future Ministerial Decree, which would have had to to explain how to grant an efficient filtering),
  • to obtain from providers isolation/blocking of illegal content within a time frame of 24 hours (non compliance would imply a fine from Euro 50.000 up to 250.000 and criminal charges resulting in arrest from 6 month to 5 years).

The bill, being strongly opposed for patent censorship implications and heavily criticized for unacceptable 'technical ignorance' as to the Web's functioning, was momentarily abandoned and isn't likely to make it easily through the Italian Parliament in the future.

3. Freedom of Expression on the Web.

Italian Courts – similar to their peers in other jurisdictions - found themselves facing the problem of transferring the traditional principles and rules to on-line activities, interactions and communication.

With the "explosion" of on-line publications, discussion/news forums, blogs and similar platforms/virtual places, assessing how long-standing fundamental principles and 'legal tradition' originating from both, existing Statute Law as well as from interpretation delivered during the years by local Courts, would impact on these new means of communication became quickly a key aspect Italian judges had to deal with more and more frequently. They had to put themselves questions (and to answer them) like "What's actually a Blog? Is it an on-line 'editorial product' (as such - just like a newspaper - subject to the provisions governing press)? Is the position of the individual running a Blog somehow similar to that of a Chief Editor?

3.1. A First Instance Court ("Tribunale") in Aosta answered the questions affirmatively4, when approached with a complaint for a criminal offence of defamation, which the plaintiff assumed had been performed through a number of posts on a Blog. According to the Italian Criminal Code (Section 595) the respective charges – if found grounded - potentially involve a sentence from 6 months up to 3 years in jail or – alternatively - a fine. In addition, Section 596-bis establishes "co-liability" of the Chief Editor, the Publisher or the Printer, if such offence is performed through the press.

In the specific case the Court found that:

  • The individual running a Blog is clearly to be held as the "responsible editor/manager",
  • Having the Blogger the faculty of monitoring content posted, his position was not different from that of a newspaper's Chief Editor,
  • Such conclusion was justified by the fact that an individual managing a Blog has complete and unconditional control on the content posted and therefore – just as a newspaper's Chief Editor – has an obligation to cancel offensive posts.

The Court's findings, announced very firmly and without any hesitation, seem to have missed a number of aspects, which – if thoughtfully pondered – stand in the way of the claimed total identification between the position of a Blogger and that of a Chief Editor:

  • First of all, it appears fairly obvious that not any Blog can automatically be considered as an "editorial product", subject to the (Statute Law) provisions governing press.
  • To the purpose a Blog would be required to: (a) be aimed at diffusing information to the general public, (b) on a periodical basis, and (c) to be characterized by a specific name/title, identifying the editorial product.
  • From a strictly factual and technical perspective a Blog appears to be much closer to a "message board" than to a newspaper.

3.2. Similar ill fate had to face another Italian Blogger who found himself charged for performing illegal "underground press", was fined for Euro 150,00, sentenced to a total block of his blog and to paying Euro 5.000,00 for legal fees.

In the views of the First Instance Court (Tribunale) of Modica5:

  • In the specific case, the defendant had been found responsible of publishing on the Internet a newspaper with the characteristics of an 'editorial product' (as the Blog's content had been 'periodically and systematically' updated).
  • Failure of registration therefore resulted in the offence of performing illegal "underground press" (sanctioned either with a jail term up to 2 years or by a fine).
  • The defendant's argument that he had never intended to publish a newspaper, but simply to keep a sort of personal diary or notebook to be shared with others didn't appear valid and correct as the access to the Blog for posting content was not open everybody as posts submitted implied direct in-advance contact with (and control by) the Blogger, who therefore made himself equivalent to an Chief Editor.

Again, the Court's decision initiated discussions and originated criticism among legal experts, who found it hard to agree on the Court's arguments and wondered why no co-liability of the Provider hosting the Blog had been established. Once the Blogger had been considered guilty of publishing an 'illegal underground newspaper', the Court's logic couldn't avoid to charge the Provider for "diffusing" such illicit editorial product6.

4. Recent case-law

On these premises it definitely does not come as a surprise that the Supreme Court7 (and specifically its Criminal Chambers) was approached and called to provide some guidance on the issue.

4.1. In a defamation case, originating from information posted on a Blog, the Supreme Court clarified8 that:

  • Statute Law provisions governing Press could not be (simply and automatically) extended to on-line publications,
  • Such conclusion was even more obvious when a website did not present characteristics apt to bring registration requirements (set for editorial products) into play,
  • Therefore liability of the individual running/administering the Blog was not given ex se, but actual contribution to the claimed offence's performance had to be proven (as, differently from the position of a newspaper's Chief Editor, a Blogger usually does not interfere with posts' structure, headlines or content or make decisions on pictures uploaded).

4.2. A few weeks later the Supreme Court – again in a defamation case9 - expressed some general views on the relation between Internet and freedom of speech and right to criticize.

According to the Court10

  • Defamation performed on the Internet had to be considered as an 'aggravation', being the Web a mean of communication and diffusion of particularly high potential.
  • In a modern – democratic – society the Internet had also to be seen as a context, in which proper exercise of some of the most fundamental rights (as those of informing, exercising criticism and expressing views and opinions) had to be granted not only to professional journalists, but rather to all individuals.
  • Such conclusion appeared to derive directly from the principles laid down in Section 21 of the Italian Constitution11, which therefore had nowadays to be intended as allowing any individual to report, criticize and comment on facts.
  • When exercising such right of addressing the general public with information and opinions, any individual becomes (also and necessarily) subject to the limits set for such activity, i. e. information diffused has to result: (a) of social relevance, (b) verified - at least to a reasonable extent - as to factual correctness, and (c) reported in acceptable and decent terms12.

4.3. During the current year the Supreme Court has delivered an interesting decision13 on the possibility of seeking for (and obtaining) the seizure of web pages/sections featuring content claimed to be defamatory.

In this case the defendant – hit by a seize order, confirmed by a Second Instance Court – approached the Supreme Court arguing that information posted on a website should benefit from the same (special) guarantees provided by the Constitution14 to press and meant to prevent any form of undue censorship. These special guarantees allow the seizure of a newspaper only in very specific, exceptional cases (set by Statute Law) and on a properly grounded decision of a Court. One of such exceptional cases occurs when press is used for performing offences against public morality.

Confirming its earlier opinion15 the Supreme Court stated that the simple fact that messages and contributions posted to an on-line forum or discussion group could be accessed by the general public (or, at least, by those registered with the forum) did not imply that such communication platform had to be held as equal to an 'editorial product' or to an on-line newspaper. In the Court's view, such a forum was to be considered as a "discussion area", where individuals could freely express their opinions and thoughts, a characteristic that was not sufficient to transform the news group into an editorial product, subject to the requirements16 set by Statute Law for press.

On these premises, the Supreme Court disagreed on the defendant's argument of a "dynamic" reading of Section 21 of the Constitution, intended to stretch the special guarantees provided for Press to cover all new means of on-line communication (as Newsletters, Blogs, Forums, Instant Messaging, Mailing Lists, Chat Rooms, News Groups, etc.).

The Court concluded that such new means of communications, though apt to realize platforms and contexts for exercising individuals' right of freedom of expression, could not be held as identical to press. Therefore while they were not subject to the requirements set by Statute Law for editorial products, they also could not automatically benefit from the special guarantees assigned by Section 21 of the Constitution to the press.

The seizure disposed by the lower court was therefore confirmed17.

4.4. Earlier in 2009 the Court18 had also an opportunity to reflect on the nature and function of e-mails and found that electronic messages are comparable to letters, which contain an indication about the sender, but are not signed19, a fact that does not prevent the recipient to ascertain and proof that the message's actual author is the person indicated as the sender.

5. Freedom of Expression versus Privacy.

"Freedom of Expression" and "Privacy" (the latter to be intended in the typical meaning accepted in most European countries – i. e. as the right "to be left alone" - which presents significant differences with respect to the reading common in the US) do both rank among an individual's most fundamental rights and therefore benefit from protection on the highest (constitutional) level.

As a consequence eventual clashes between the respective principles will result difficult to solve as this requires finding a compromise apt to combine the right (and need) to provide the general public with information with an individual's expectation to have not publicly revealed aspects pertaining to its private sphere of intimacy.

The problem results even more complex since Italy – like all other countries members to the European Union – has implemented the Directives on the protection of personal data20 and has combined all the respective provisions in a Consolidated Act, the so-called "Privacy Code"21, which in quite a number of cases considers - and sanctions – illict data handling as a criminal offence.

The Italian Information Commissioner (= "Autorità Garante per la Protezione dei dati Personali") was therefore called to deal with various issues linked to the problem.

5.1. Back in year 2002 a professor, in charge of a research project at a University Hospital in Milan, filed a complaint with the Commissioner objecting to the posting of his personal details on a website. The posts had been uploaded by an association advocating against vivisection – allegedly performed in the context of the research project coordinated by the the professor – and invited the general public to rise protest against such brutal and cruel practice through messages to be sent to the project leader. To the purpose the professor's private address and phone number, as well as his cell phone number and University e-mail address were reported in the post.

In front of the Commissioner the defendant argued that the contact details indicated for sending protest message were "publicly available", as the private address and phone number had been taken from the official phone directory, while the e-mail address had been found on the University's website and the cell phone number had been submitted by the plaintiff in the context of a direct call. In addition, reference was made to the limits to a person's privacy expectations for reasons relating both, to the "right to criticize" as well as to the "freedom of press" principle (both benefiting from constitutional protection).

The Commissioner found the complaint partially grounded22, considering that:

  • Occurring information to the general public under the freedom of press principle, a person's private contact details could reported without the interested subject's consent,
  • Nevertheless, an e-mail address on the University's website was not to be held as "publicly available", being published there for 'institutional purposes' (e. g. in order to ease contacts with colleagues, students or the University's offices) and therefore not achievable for different uses,
  • In addition, a cell phone number revealed during a direct call – with the aim of easing mutual contacts – could also not be legitimately diffused to the general public.

The Commissioner did not deal with the issue of whether the private address or phone number had been correctly used as the defendant had provided for immediate removal of such data after being notified about the complaint.

5.2. Recently the Commissioner issued a number of decisions on other aspects related to the problem.

5.2.1. In 2008 one of the major national newspapers thought to draw readers' attention on its huge on-line archive, available in a dedicated section on its website. To the purpose an article was published, which contained reference to a criminal fact occurred in 2001 and to a person arrested and subject to pretrial custody at the time.

This person was all but happy about the renewed hype given to its not exactly glorious past and therefore approached the Commissioner claiming the right of having its personal data "anonymized" should past facts be brought again to the general public's attention.

The Commissioner didn't agree on the claimant's request and dismissed the complaint on the following grounds23:

  • The rules on personal data processing contained specific provisions meant to achieve a proper (and proportionate) balance between protection of an individual's private sphere and the right, both of informing the public and reporting about news and events as well as of conducting historical research,
  • Once the personal details' original diffusion had been performed correctly (which was the case), there was no reason for imposing additional burdens or obligations (as a specific consent or anonymization) in occasion of a mere representation of the events and the data used in their context.

The decision implicitly, but clearly excludes the existence of a "right to oblivion", which is frequently claimed by local privacy advocacy groups.

5.2.2. But journalists had to face the Commissioner's criticism in two other cases, where the Authority definitely disagreed on what seemed to be a rather questionable - even though widespread - practice.

It' was brought to the Commissioner's attention that articles reporting – in the daily news – about car accidents had used victims' photographs downloaded from their Facebook profiles. Unfortunately the journalists were mislead by homonymy and the pictures of completely unrelated – and very alive - persons had been used.

Unhappy about being reported as dead and about the anxiety caused by such incorrect notice to their families and friends, the interested persons filed a complained with the Authority.

Despite the newspapers' immediate publication of a corrective notice the Commissioner held24 that illicit data processing had occurred and reminded the journalists who had fallen afoul the importance of properly in-advance checks of their sources. Aside from obvious embarrassment even more harming to the newspapers involved was an order for immediate and complete removal of the wrongly published photographs from the on-line editions and also from the on-line archives.

5.2.3. On the other hand, according to the Supreme Court25, decisions or injunctions issued by courts may report, when published on the Internet, the complete personal details of the parties involved in the proceedings, save the case that a specific request for omission was made.

6. In conclusion

These comments are only aimed at providing a rough idea about the complexity of the problems involved by the coexistence in the Web of freedom of expression and information, on one side, and the need of granting suitable protection to individuals' private sphere, on the other side.

These comments certainly won't pretend to have succeeded in proposing a neat and viable solution, capable to offer such co-presence in perfectly balanced terms. All values involved in the confrontation are of fundamental importance and benefit from (and do receive) consideration at the highest level, usually that of constitutional protection. They therefore all deserve identical respect, but also the consciousness that coexistence sometimes will require a proper dose of "self-restraint" and a "common sense" approach. If theoretically there is nothing wrong in taking a picture of a colleague in a work-place environment, posting such pictures on social networks as Facebook or YouTube is a completely different issue (even more if the interested person is not aware of such use).

Being that of the "cum grano salis" approach a criterion valid in almost any context, there is no reason for not adopting it also with respect to our presence in the on-line World.

While concluding the already mentioned 2009 event26 the Italian Information Commissioner expressed his clear view that when going on-line and attending social platforms, users should always perform a very careful in-advance assessment both, about their personal data to be made available on the Internet as well as about the requirements to fulfil and the cautions to adopt in order to duly respect third subjects' privacy.

Footnotes

1. According to Constitutional Court, decision no. 38 of 1973.

2. An event organized on January 28th, 2009 in Milan (Italy), where both privacy experts and professionals as well as representatives of Authorities in charge – worldwide – gathered and discussed "hot" topics in the area of processing of personal data.

3. So Corte dei Conti, Regione Toscana, Sez. Giurisdizionale, decision no. 70 of February 14th, 2009.

4. Judgement no. 553 of June 1st, 2006.

5. Judgement no. 194 of August 6th, 2008.

6. A distinct offence sanctioned - by Section 663-bis of the Italian Criminal Code – with a fine.

7. i. e. Highest Instance Civil and Criminal Court.

8. So Fifth Criminal Chamber, judgement no. 24018 of May 15th – June 12th, 2008.

9. Environmentalists claimed that a company was responsible for water pollution, performed by discharging carcinogenic substances through the plant's water-cooling system.

10. See Fifth Chamber, judgement no. 31392 of July 1st - July 25th, 2008.

11. Granting freedom of expression and of press.

12. Author's comment: in the Supreme Coutrt'sd jurisprudence comments in "vibrant", "highly ironic" or even "scornful" wording may be acceptable according to the context.

13. Third Chamber, no. 10535 of December 11th, 2008, published on March 10th, 2009.

14. Again, discussion is about Section 21 of the Italian Constitution, which sets that "any indivdual has the right to freely express his opinions through speech, in writing or by any other suitable means of diffusion" . In addition it establishes that "press may not be subject to censorship".

15. See above, comments in Point no. 4.1.

16. Registering the newspaper's or magazine's name, having a Chief Editor, in charge of controlling content to be published.

17. On the possibility od seeking for a seeze order with respect to a website see also Supreme Court, Fifth Chamber, judgement no. 17401 of April 29th, 2008.

18. Fifth Criminal Chamber, judgment no. 1369 of January 15th, 2009.

19. Electronic signature – certified or not – is still a not very common practice in Italy.

20. EU- Directives no. 95/46 of October 24th, 1995 and no. 2002/58 of July 12th, 2002.

21. Legislative Decree no. 196 of June 30th, 2003.

22. So decision no. 1065798 of July 31st, 2002.

23. As per decision dated February 12th, 2009, no. 1601624.

24. Decisions nos. 1615317 and 1615339 of April 29th, 2009.

25. Again Fifth Criminal Chamber, judgment no. 4239 of Januarty 29th, 2009.

26. See footnote no. 3 above, where reference is made to the European Data Protection Day.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Felix Hofer
 
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