COMPUTER CRIMES
Court of Cassation: publication of messages on Twitter does not exclude damages for defamation.
The Court upheld Consob's request to order the present appellant to pay damages for defamation for having carried out a smear campaign by means of press releases and Twitter messages.
In the appeal, the appellant submits that the judgment under appeal had assessed the statements by taking them out of context without taking into account the platform on which they were published as well as the underlying information method. According to the appellant, the sentences had to be considered free expression of a critical thought addressed in a generic way to Consob's institutional activity.
Among the grounds of complaint, the appellant also denounced the failure to take into account the context of political criticism within which the incriminated statements had been made, pointing out that he had been a senator.
For the Court of Cassation, the grounds are unfounded.
As a preliminary remark, the Court recalled that "on the subject of damages for defamation, the historical reconstruction of the facts, the assessment of the content of the writings, the concrete appreciation of the expressions used as damaging to the reputation of others and the assessment of the existence or otherwise of the exemption of the exercise of the rights (of the press and) of criticism are the subject of factual assessments, reserved to the judge of merit and unquestionable in the court of legitimacy if supported by reasoned grounds". Therefore, the ascertainment of the defamatory capacity of the contested expressions is always extraneous to the judgement of legitimacy.
According to the Court of Cassation, the reference to the appellant's political activity as the basis of the right to criticism is irrelevant because, 'although it allows the use of harsh and disapproving tones that are 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 the exposition and not exceeding the limits of what is strictly necessary for the public interest'.
Similarly, the fact that the statements were made by means of a social-network such as Twitter does not exclude their damaging content.
For these reasons, the Court of Cassation rejected the appeal in Order No. 13411 of 16 May 2023 and affirmed the following principle of law:
"the use of a platform such as Twitter, or other equivalent ones, implies the observance of the intrinsic limit of the judgement that is shared, which, like any judgement, cannot be separated from the content that distinguishes it and from the expressive form, especially since it is translated into a short text message that is by its nature assertive or poorly motivated; the post in Twitter does not exempt the author from the necessary respect of expressive continence since it cannot materialize an irresponsible manifestation of thought only because it is conveyed through the chosen medium".
(Source: SEAC All-In Giuridica - Ownership of the contents: Gruppo SEAC)
In the appeal, the appellant submits that the judgment under appeal had assessed the statements by taking them out of context without taking into account the platform on which they were published as well as the underlying information method. According to the appellant, the sentences had to be considered free expression of a critical thought addressed in a generic way to Consob's institutional activity.
Among the grounds of complaint, the appellant also denounced the failure to take into account the context of political criticism within which the incriminated statements had been made, pointing out that he had been a senator.
For the Court of Cassation, the grounds are unfounded.
As a preliminary remark, the Court recalled that "on the subject of damages for defamation, the historical reconstruction of the facts, the assessment of the content of the writings, the concrete appreciation of the expressions used as damaging to the reputation of others and the assessment of the existence or otherwise of the exemption of the exercise of the rights (of the press and) of criticism are the subject of factual assessments, reserved to the judge of merit and unquestionable in the court of legitimacy if supported by reasoned grounds". Therefore, the ascertainment of the defamatory capacity of the contested expressions is always extraneous to the judgement of legitimacy.
According to the Court of Cassation, the reference to the appellant's political activity as the basis of the right to criticism is irrelevant because, 'although it allows the use of harsh and disapproving tones that are 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 the exposition and not exceeding the limits of what is strictly necessary for the public interest'.
Similarly, the fact that the statements were made by means of a social-network such as Twitter does not exclude their damaging content.
For these reasons, the Court of Cassation rejected the appeal in Order No. 13411 of 16 May 2023 and affirmed the following principle of law:
"the use of a platform such as Twitter, or other equivalent ones, implies the observance of the intrinsic limit of the judgement that is shared, which, like any judgement, cannot be separated from the content that distinguishes it and from the expressive form, especially since it is translated into a short text message that is by its nature assertive or poorly motivated; the post in Twitter does not exempt the author from the necessary respect of expressive continence since it cannot materialize an irresponsible manifestation of thought only because it is conveyed through the chosen medium".
(Source: SEAC All-In Giuridica - Ownership of the contents: Gruppo SEAC)
