22 January 2021 - Article
The proliferation of social media networks provides users with the opportunity to spread their ideas to an almost infinite audience. However, if on the one hand, the freedom of thought is a relevant right (provided by Article 21 of the Italian Constitution), it must be balanced with respect for the person and his reputation.
The crime of defamation
Under Italian law, anyone who offends the reputation of others before more than one person commits the crime of defamation, which is punishable with imprisonment for up to one year. The relevant provisions in the Italian Penal Code (‘the Penal Code’) protect a victim’s reputation in law, where the latter can be clearly identified. The victim is entitled to enjoy this right from a moral and social point of view. Perpetrators of the offence of defamation must be aware of the offensiveness of their comments and they must intend to offend the victim in order to trigger the Penal Code.
Furthermore, the crime of defamation is a free-form crime, which therefore can be committed by any means, including by way of speaking. However, an increase in the penalty is provided for under the Penal Code in the event that the offense is caused through the press or is otherwise advertised. The Penal Code aims to cover and sanction the use of any dissemination tool, which is able to reach a wider audience and thus cause a greater harm to the individual. The Italian Supreme Court – with the decision no. 4873/2017 – clarified that, specifically, the dissemination of a defamatory message through a social media network feed must be considered attributable to the hypothesis of aggravated defamation in the type of “any other means of advertising”. Moreover, the court held that this particular communication method has the ability to reach an indefinite number of people and regards subjects present on a specific virtual platform for the purpose of constant socialisation.
The right to be critical
Notwithstanding the above, people cannot be deprived of exercising their right to criticise. It may happen that in expressing one’s opinion, which as such may not be objective, a judgment is made and it may affect some people or matters that concern such people. The public interest in being aware of the subject of criticism is ever more important but, in order to be lawful, that criticism must be expressed in a reasoned way so as not to gratuitously damage the dignity of others. Furthermore, it is fundamental to verify that the object of criticism is factually accurate, so as not to give rise to unnecessary criticism without an objective basis. There is a fragile balance to be struck when trying to be critical! The judgment of the Court of Justice of the EU (the ‘CJEU’) in case C-18/18 helps to explain what that balance may look like.
EU case law on defamation
Case C-18/18 concerns an Austrian Member of Parliament, who sued the social media network Facebook in order to affect the deletion of comments posted by a user, which, according to her, were damaging to her honour.
According to the Directive on Electronic Commerce 2000/31/EC, a hosting service provider, such as Facebook, is not responsible for the information stored on the network if it is not aware of its illegality or if it acts immediately to remove or disable access to defamatory content as soon as it becomes aware of it. However, this exemption from liability does not affect the possibility of a competent court ordering the hosting service provider to put an end to or to prevent a violation, in particular by deleting the illegal information or disabling access to it.
According to the CJEU, EU law does not prevent a hosting service provider, such as Facebook, from being ordered to remove defamatory content and, in certain circumstances, other additional content that is equivalent to content previously declared illegal. Furthermore, EU law does not preclude courts imposing an injunction with worldwide effect. In addition to the avenues for taking down offensive content under e-commerce and defamation law, concerned individuals may wish to explore the opportunities that data protection law provides.
EU case law on data protection
Case C-507-17 of the CJEU arose following the French Data Protection Authority’s imposition of a EUR 100,000 fine on Google Inc. as a result of Google’s refusal to apply a de-indexing requested by a data subject to all extensions of the domain name of its search engine (i.e. .com, .it, co.uk, etc). The request concerned content accessible on Google search that the relevant individual considered offensive.
The CJEU sought to clarify whether EU data protection law may be interpreted as meaning that, when an operator of a search engine accepts a request for de-indexing, it is required to effect the request on all versions of its search engine internationally. Or if, on the contrary, it is required to perform the de-indexing only on the versions of the engine corresponding to all Member States, or only on the engine corresponding to the Member State of residence of the beneficiary of such de-indexing.
In its decision, the Court stressed that only a worldwide de-indexing would be suitable for fully achieving the protection objective pursued by EU law. However, the right to erasure under EU data protection law is not an absolute prerogative, and must be considered in light of its social function and must be balanced with other fundamental rights, in accordance with the principle of proportionality. Furthermore, the very balance between the right to respect private life and the protection of personal data and the freedom of information of Internet users can vary considerably around the world.
The Court, therefore, concluded that, at present, there is no obligation deriving from EU law for the operator of a search engine, who fulfills a request for de-indexing, to carry out such de-indexing on all versions of its engine across the world. However, EU law obliges the operator of a search engine to carry out this de-indexing in the versions of its search engine corresponding to all Member States and to take sufficiently effective measures to ensure adequate protection of the fundamental rights of the person concerned.
Territorial extension of the CJEU decisions
EU case law has, for the time being, defined how far defamation and data protection action can extend globally. For defamation action, a decision of a Member State judge applies worldwide, whereas, for data protection action, a decision of a Member State judge applies only within the boundaries EU.
However, the recent ruling of the Court of Milan may have distorted this “balance” on 17 June 2020. With regard to the removal of defamatory content on Facebook, the Court overturned the decision taken at first instance (which followed the reasoning of the CJEU, based on a worldwide extension of protection against defamation) and limited the territorial effects of the provision to the EU only. The Court justified this limitation with the fact that there are no absolute rights, and that there should only be a balanced comparison of rights according to the principle of proportionality. According to the Court, such limitation appears appropriate also out of respect for the law of other States that may have legal traditions that are different from these of the State issuing the content removal order.
Striking a balance between data protection and the right to be informed or between the dignity of the person and freedom of expression is particularly challenging where the operators of most online mediums for information dissemination are private (and very wealthy) organisations. What is certain is that there are multiple legal avenues for taking down offensive content online. As matters evolve and time goes by, it likely that judicial thinking will evolve as well.