What is the concept of defamation?
To offend the reputation of an absent person constitutes the crime of defamation, which is further aggravated if the offense attributes a specific fact to the victim or is committed through the press or other means of publicity (such as the Internet or social media).
The truth of the statement does not exclude defamation.
This is different from the right to criticism and the right to report, which, if expressed in a non-offensive manner and in response to a social interest, do not constitute a crime.
Anyone who sees their reputation unjustly harmed has the right to claim compensation for damages.
Is defamation a crime in Italy?
The Supreme Court of Cassation, in judgment no. 44662/2021, addressed the distinction between insult (now decriminalized) and defamation, establishing the legal principle that an offense made during a remote meeting, with multiple people connected simultaneously, and in the presence of the recipient of the offensive remarks, constitutes the civil offense of insult.
Conversely, if the incriminated communication is addressed to the offended person and other non-present individuals, it constitutes the crime of defamation. [Link to: https://arnonesicomo.it/news/179/diffamazione-su-facebook]
Therefore, the distinction between the two types of offenses against one's honor, even if committed using social communication tools, depends on whether or not the offended person is actually present in the virtual setting. Insult now falls within the category of civil offenses, punishable only by compensation for damages.
What is Article 595 of the Italian Penal Code?
Article 595 of the Criminal Code establishes in its first paragraph that anyone who, outside of cases of insult (see Article 594 of the Criminal Code), offends another person's reputation by communicating with multiple people is punishable by imprisonment of up to one year or a fine of up to €1,032.00.
This penalty may increase to two years of imprisonment and a fine of up to €2,065.00 if the offense involves attributing a specific fact to the victim.
The requirement of communication is considered met even if it is carried out at different times (e.g., word of mouth).
If the offense is committed through the press or any other means of publicity, the crime will be punished by imprisonment from six months to three years and a fine of no less than €516.
If the offense is directed at a political, administrative, or judicial body, or at a person in a representative role or an authority constituted in a collegiate body, the penalties are significantly increased.
What is online defamation?
The conduct of damaging another person's reputation and honor through posts or comments on the web and social media constitutes the crime of aggravated defamation.
In contrast to journalistic outlets, where the director or publisher is held responsible, the individuals who published the defamatory content will personally be held accountable for the consequences of their actions.
In the crime of defamation via the Internet, in accordance with the ruling of the Supreme Court of Cassation no. 31677/2015, if it is not possible to determine the place where the crime was committed, the focus should not be on the location of the server but rather on where the defamatory content was actually uploaded.
The Court of Cassation also states that if it is impossible to identify the place where the crime was perpetrated (for example, if committed via the Internet), the competent authority is the Judge of the last place where part of the action or omission occurred.
If the crime is committed by multiple individuals residing in different locations and districts, jurisdiction belongs to the Judge of the location where the office of the Public Prosecutor who first recorded the crime report is based.
What to do in case of defamation?
The crime of defamation can only be prosecuted upon the complaint of the offended party. Therefore, even if the judicial authority becomes aware of the crime, it cannot proceed in the absence of a formal complaint.
The victim of the crime must inform the competent authority within three months from the moment they became aware of the offense committed against them, explicitly requesting that action be taken against the perpetrator.
Remedies for Online Defamation
Honor, decorum, and reputation are legal interests protected by the Italian legal system. Therefore, a person who has been defamed has the right to compensation for non-pecuniary damages in the form of subjective suffering caused by the unjust violation of the inviolable right related to the dignity, image, and reputation of the individual.
In this regard, the Supreme Court of Cassation has clarified that the damage should be understood without distinction between personal and professional reputation.
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.
