In a recently published judgment, the Italian Court of Cassation consolidates its case law on online defamation matters, in particular regarding the liability of the administrator of a blog. This case is an opportunity to examine the solution that could have been given in French law when facing similar facts, in accordance with the Law on the Freedom of the Press of 29 July 1881 (hereinafter “French law of 1881”). Contrary to what its name suggests, this French law is not limited to the press strict sensu, but regulates all types of infringements of freedom of speech, regardless of the medium used (paper or digital) or their aim (journalistic or not). Therefore the French law of 1881 applies to both paper newspapers and social networks such as Facebook or TikTok. Conversely, despite an almost identical name, the Italian Press law (n° 47 of 8 February 1948) is only applicable to the “press” as a public information means (including the online press as underlined by the Italian Court of Cassation in a ruling n°31022 rendered on July 17, 2015), thus excluding from its scope social networks, newsletters and other blogs. As a consequence, due to its non-journalistic nature, the blog at issue in the above case does not fall within the scope of the Italian Press Law.
This case raises the issue of the liability of a blog administrator who, once aware of the existence of defamatory content on his blog, did not take any measure to promptly remove the said publication, nor informed the competent authority for such removal. In this context, the Italian Court of Cassation addresses two interesting aspects of Internet operators’ liability: does an online defamation committed through a blog constitute an aggravating factor? (1) On what ground can the liability of the blog administrator be sought for damage that might be occasioned by contents appearing on his website? (2)
1-) Is a blog an “other means of publicity” within the meaning of Article 595 paragraph 3 of the Italian Criminal Code, characterizing as such an aggravated defamation?
In both legal frameworks, the fact that defamation is committed through public means of expression constitutes an aggravating factor. Indeed, when “the offense committed by the means of the press or by any other means of publicity“, the penalty is of imprisonment from 6 months to 3 years or a fine of at least 516€, under Article 595 paragraph 3 of the Italian Criminal Code. In France, defamation pronounced in public places, on media distributed or displayed in public places, or by “any other means of electronic communication to the public” (Article 23 of the 1881 law) is even a separate offence, with a heavier penalty (a 12,000 euro fine according to Article 32 of the 1881 Law) than what is provided for in case of non-public defamation.
By nature, a blog can instantly reach an indeterminate audience. This is why the Italian Court of Cassation reaffirms its established case law according to which contents published on online instruments (social networks, newsletters, forums etc.) must be considered as “other means of publicity” within the scope of Article 595 paragraph 3 of the Italian Criminal Code. The French approach is slightly different in that instead of focusing on the nature of the means used, it enshrined the concept of “community of interest” as a compass to determine whether or not the offence is public. In other words, defamation that is only accessible to a group of people linked by a community of interest (for instance a private Facebook group with a limited number of users) is deemed to be private. On the contrary, “internet broadcasting to an unlimited number of persons not linked by a community of interest constitutes an act of publicity” (French Court of Cassation, Criminal Division, 16 October 2001, n°00-85.728). The position adopted by French judges appears to provide a greater protection for Freedom of speech in a private context. Instead, the insult published on a blog open to anyone (as it is the case in the judgment under review) would, as in the Italian framework, constitute an aggravated offence under French law, because of its outreach capacity.
Although les favorable to blog administrators (especially since they do not benefit from the guarantees enjoyed by press organs), this solution allows the victim to overcome the challenges resulting from the possible anonymity of online users. The possibility of bringing action against the blog administrator is a way for the victim to claim damages when an anonymous user attacked his reputation. This issue related to anonymity on the Internet is even more complex since, in response to the French Data Network European ruling (CJUE, 6 October 2020, C-511/18), the French law (n°2021-998 of 30 July 30 2021) now limits access to the identification data of online users to the most serious criminal cases.
2-) Can the administrator of a blog, who is not the author of the defamatory content but who fails to remove it from his blog, be held liable and on what ground?
Under Italian law, the director of a press company who, by failing to monitor the published contents allows an offence to be committed in his press, is subject to a similar, but reduced, penalty as the one provided for the principal offender (Article 57 of the Italian Criminal Code). However, in the judgment under discussion, the Italian Court of Cassation recalls that a blog administrator cannot be assimilated to a director of publication within the meaning of Article 57 of the Criminal Code, as it only applies to press organs. Such an article is comparable to what is known in French law as “cascade liability” (responsabilité en cascade), i.e. a mechanism with different levels of liability, specific to press offences. Specifically, under Article 42 of the French law of 1881, editors-in-chief and editors are “liable as principal authors to the penalties for offences committed through the press“. Nevertheless, like Italian judges, French case law has ruled out the application of the above-mentioned provision to online communication, on the grounds that a person running a blog is not required to “verify the validity of the information he reproduces” (Tribunal de grande instance de Paris, 17th chamber, judgment of 17 March 2006, confirmed on appeal).
Due to a lack of adaptation of the law to the virtual world, the Italian Supreme Court considers that the common rules of complicity (Article 110 of the Italian Criminal Code) allows to impute a defamation to the blog administrator, the latter being subject to the same penalties as the principal author (Article 121-6 of the French Criminal Code provides for the same mechanism). But, the mere fact of being a blog or forum administrator does not automatically make them accomplice to an offence committed by another user. In this respect, the Italian Court recalls that a number of elements must reveal the participation of the administrator in the defamatory conduct. To this end, it is necessary that the administrator has been aware of the existence of illegal content on his blog but has not deleted it or informed the competent authority to proceed to such a removal.
In France, the HADOPI law (law n°2009-669 of 12 June 2009) has amended Article 93-3 of the law of 29 July, 1982, to regulate this particular case. Even though French law does not choose to address the issue through the rules of complicity, the resultant solution is similar to the one adopted by the Italian Supreme Court: the editor of the blog or website can only be held liable if he was aware of the illegality of such a publication and did not act “promptly to remove the message“.
In conclusion, even if the solutions adopted by the two legal orders are comparable in practice, the French legislator has already filled some legal uncertainties that have arisen with the expansion of the online press and social networks (especially through the HADOPI law). Such legislative intervention also appears desirable in Italy. In any event, the new European regulation on Digital Services (known as the “DSA”, which will come into force in February 2024) will strengthen the liability of digital platforms.
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