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Avvocato Arlo Canella
In an age ruled by social media, where information travels at the speed of light, the line between the right to criticize and defame can be blurred. Recently, Italian Supreme Court Order No. 13411/2023 addressed this issue head-on, making us reflect on the role and responsibilities of politicians and users of platforms such as Twitter. In this article, we will focus on analyzing the case and its potential implications for freedom of expression on the web.
The case at hand involves a former senator of the Republic, accused of orchestrating a smear campaign against Consob on Twitter. His tweets were aimed at raising doubts about the agency’s work, insinuating connivance with some financial operators to favor supervised entities involved in serious wrongdoing.
Subsequently, Consob took legal action against the senator, obtaining an order from the Court of Rome to pay damages for defamation. However, the former senator challenged the ruling on appeal, arguing that his statements had been taken out of context and were part of the right of criticism.
Despite the former senator’s objections, the Rome Court of Appeals upheld the ruling, ordering him to pay compensation of 15,000 euros, plus interest. In response, the former senator filed a cassation appeal.
Italian Supreme Court Order No. 13411 rejected the idea that the concise and immediate nature of social media, particularly Twitter, can legitimize a less stringent assessment than the limits of the right to criticize. In other words, the use of Twitter does not exempt the user from the rules of fairness and respect for others.
As pointed out by the Judges, “also and precisely to the use of a platform such as twitter, or other equivalent ones, must be correlated the intrinsic limit of the judgment that is placed in sharing, which, like any judgment, cannot be separated from the content that distinguishes it and the form of expression, especially since it is translated into a short text message, by its nature assertive or poorly motivated.”
The Ermellini then drew attention to satire: “it should be recalled that even satire – which, although it constitutes a corrosive and often merciless mode of the right to criticism, to the point of being subtracted, in the paradox of the narrative, even from the obligation to report true facts – remains subject to the limit of the continence and functionality of the expressions or images with respect to the purpose of social or political denunciation pursued (cf. Cass. Sec. 1 no. 6919-18)”.
This reinforces the idea that the rules on civil and criminal liability, enshrined in Article 2043 of the Italian Civil Code and Article 595 of the Italian Criminal Code, respectively, whether short sentences or not, also apply to social media such as Twitter.
However, there remains the question of how to concretely evaluate potentially defamatory content in the context of a political debate.
The court noted that ascertaining the defamatory capacity of the challenged expressions is not part of the judgment of legitimacy, but is reserved for the court of merit. However, the fact that the Supreme Court found the plaintiff’s political activity to be entirely irrelevant opens some thoughts on the future implications of the ruling.
Indeed, political activity normally allows for the use of harsher and more critical tones than private relationships, but the Court took the opportunity to reiterate that the right to criticize is nevertheless conditioned by compliance with the limits of formal correctness and non-excessiveness with respect to the public interest.The ruling reiterates that: “the legitimate exercise of the right of criticism-even in the purely political sphere-although it permits the use of harsh and disapproving tones more pungent and incisive than those commonly used in relations between private individuals, it is still conditioned by the limit of continence understood as formal correctness of exposition and not exceeding the limits of what is strictly necessary for the public interest (see Cass. Sec. 3 no. 11767-22, Cass. Sec. 3 no. 841-15).“
In conclusion, neither the use of social media nor the brevity of the tweet or the political role played can exclude liability arising from defamation.
This ruling could have an impact on combating phenomena such as cyberbullying and hate speech in Italy. Freedom of expression, even on platforms like Twitter, cannot be considered a free pass to violate respect for the dignity of others. The defamation conviction upheld in this case suggests that those who spread defamatory or denigrating messages should fear being held accountable for their actions, regardless of the sphere (personal, political, etc.) in which the messages are spread.
The pronouncement may thus encourage aggrieved parties to be more confident in resorting to legal action in cases of cyberbullying and hate speech. The Italian Supreme Court has given a clear signal that online disparaging behavior will not be tolerated. The precedent could also act as a deterrent to those who are tempted to use social media speculatively, riding on hate even-and perhaps especially-in the political arena.
Avvocato Arlo Canella
