INFORMATION TECHNOLOGY
Supreme Court of Cassation: online defamation and the medium of publicity aggravating factor applicable to different social media (yes to WhatsApp, no to Facebook).
Sentence No. 42783/ 2024 issued by the Supreme Court addressed for the first time the issue of the different damaging potential of social media in the offence of defamation, establishing that not all social media have the same capacity to reach a more or less wide audience of recipients.
The Supreme Court, if - on the one hand - has confirmed that defamatory posts published on Facebook integrate the aggravating circumstance of the advertising medium given ‘the objective potentiality that, in such a case, the damaging text has to reach an indeterminate or, in any case, quantitatively appreciable number of people’, on the other hand, Laro clarified that - only with regard to the aggravating circumstance - it is necessary to distinguish between a social network/media (Facebook) and a chat aimed at a limited number of persons (WhatsApp Group) since ‘what is relevant, in fact, is not the number of subscribers to the chat but rather the “technical conformation” of the medium, aimed at achieving an exchange of communications that remains - in all evidence - confidential. The dissemination of the message to several persons - the chat subscribers - takes place, in other words, in a computerised context which, if on the one hand allows the rapid dissemination of the text, on the other hand does not determine the loss of an essential connotation of confidentiality of the communication, intended for an identified and previously accepted number of persons'.
The Supreme Court, if - on the one hand - has confirmed that defamatory posts published on Facebook integrate the aggravating circumstance of the advertising medium given ‘the objective potentiality that, in such a case, the damaging text has to reach an indeterminate or, in any case, quantitatively appreciable number of people’, on the other hand, Laro clarified that - only with regard to the aggravating circumstance - it is necessary to distinguish between a social network/media (Facebook) and a chat aimed at a limited number of persons (WhatsApp Group) since ‘what is relevant, in fact, is not the number of subscribers to the chat but rather the “technical conformation” of the medium, aimed at achieving an exchange of communications that remains - in all evidence - confidential. The dissemination of the message to several persons - the chat subscribers - takes place, in other words, in a computerised context which, if on the one hand allows the rapid dissemination of the text, on the other hand does not determine the loss of an essential connotation of confidentiality of the communication, intended for an identified and previously accepted number of persons'.
