With ruling no. 13252 of 2021, the Italian Supreme Court of Cassation has drawn the boundary lines between the crime of defamation (Article 595 of the Criminal Code) and that of insult (Article 594 of the Criminal Code), now decriminalized, in the context of the meetings held electronically.
Article 594 of the criminal code in fact provided that "Anyone who offends the honor or decorum of a person present is punished with imprisonment for up to six months (...). The same penalty applies to whoever commits the offense by telegraphic or telephone communication, or by means of writings or drawings, addressed to the injured person. (...) The penalties are increased if the offense is committed in the presence of more people". Article 595 of the Criminal Code, on the other hand, still sanctions "Anyone who, outside the cases indicated in the previous article, communicating with more people, offends the reputation of others". The main distinction between the two cases appears to be the presence or non-presence of the person whose reputation is being harmed.
The Italian Supreme Court, initially, made a comparison between the dictates of the two rules, establishing that: "the offense directed at a person present always constitutes insult, even if other people are present; the offense directed at a distant person constitutes insult only when the offensive communication occurs exclusively between the author and the recipient; if the "remote" communication is addressed to other people besides the offended person, the crime of defamation is configured; the offense concerning an absentee communicated to at least two people always constitutes defamation".
Subsequently, the Italian Court analyzed the notion of "presence" of the injured party, also in the light of the progress of the media, making explicit the fact that this notion necessarily implies "the physical presence, in units of time and place, of the offended and spectators, or a situation substantially comparable to it achieved with the help of modern technological systems». It follows, therefore, that if the offense is proffered during a "remote" meeting and the offended person is also present among the simultaneously connected persons, the case of injury, now decriminalized, will be configured. Where, on the other hand, the offenses are expressed, through voice or written communications, in the event that the recipient of the same is not "present", even in a virtual sense, the crime of defamation will be configured.
Avv. Francesco Bianchi
Dott.ssa Elisa Meyer
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