In times when every day we are inundated with information and misinformation (“fake news”) through messages, communications, posts or tweets on social media, it is not easy to keep track of things, and a legitimate question often emerges: where does freedom of expression end and when does a message assume criminal relevance?
Italian Penal Code:
Art. 594 Insult: Anyone who violates the honor and dignity of a person present shall be punished by imprisonment of up to 6 months or a fine of up to 516 euros.
The same punishment applies to anyone who commits the act by telegraph or telephone, or by letters or drawings addressed to a person.
The punishment is increased by up to one year’s imprisonment or a fine of up to 1.032 euros if the violation consists in the attribution of a certain circumstance.
The punishment is increased if more than one person is present.
(This offense was decriminalized in 2016, meaning it is no longer a criminal offense, but can be punished civilly. It is also an administrative offense, punishable by a fine).
Article 595 Defamation: Whoever, outside the scope of the previous article, by communicating with several persons, damages the reputation of a person, shall be punished by imprisonment of up to one year or a fine of up to 1.032 euros.
Although State Law 547/1993 introduced several new crimes in Italy generally referred to as “computer crimes,” this has not contributed to the punishment of the crime of insult or defamation committed through computers or telematic networks.
The criminal offenses provided for in Articles 594 (insult) and 595 (defamation) of the Penal Code are sufficiently specific but still general to include all offensive behavior carried out through computer networks and modern communication technologies in general (SMS, chat, newsletters, etc.).
Insult is a purely dangerous crime, which means that it is not necessary for the person concerned to actually feel their honor has been violated.
Whether expressions are to be classified as defamatory or not and are not just expressions of bad taste always depends on the context, external circumstances, and previous history. For example, there are no expressions that are intrinsically defamatory and others that are not.
The court decides whether or not the criminal limit has been crossed, taking into account all objective and subjective circumstances.
Conversely, the same expression may be considered defamatory in one context but not in another.
The crime of defamation occurs if the message is perceived by people other than the author and the offended person.
Unlike slander, insults on the Internet, regardless of the platform, always occur when the person concerned hears these expressions at the moment they are uttered and can therefore reply immediately to them.
In the opposite case, it is called defamation.
Whether in a separate civil case or as a civil party in a criminal case, the injured person can seek damages for defamatory statements.
Examples:
The expression that a person is a “zero” or a “nothing” has been held to be defamatory.
The expression “they are unable to do their job,” addressed to police officers, was not considered defamatory.
Other commonly used expressions in Italian, certainly defamatory in themselves, such as “vaffanculo” or “rompere le scatole” were classified as used so frequently that they lost their offensive power.
The expression addressed to a woman who was a “driving school boat” (in German “Fahrschulboot“) with the implication that she had had many sexual relationships in the past was considered defamatory.
A local politician’s statement that municipal politicians, with the full consent of the mayor, had built an illegal landfill near deep wells used for drinking water, was not considered dishonorable. This claim turned out to be false. However, the person was acquitted of the crime because the allegations were so inaccurate and superficial that the court ruled that they were part of a political dispute between rival political parties.
A blogger published the false news that 2 rappers were caught with 23 grams of cocaine in the car. The defamation complaint was rejected as it was probably a sort of satire about two well-known artists in the “Jet Set” and therefore classified as pure gossip. Since the message was very generic, the threshold established by criminal law would not have been exceeded.
It is recognizable that there is a tendency to set a very high threshold of criminal relevance, particularly regarding famous people, so that under the guise of the right to criticism and satire (even if not immediately recognizable as such) almost anything is forgiven, at least in terms of criminal law.
