Case Summary and Outcome

The Italian Criminal Supreme Court confirmed a lower court’s decision that the publication of mocking posts on Facebook did not constitute “persecutory acts” (or “stalking”). After two individuals had been the subjects of posts on Facebook which caused anxiety and fear, a court of first instance convicted the author of the posts of persecutory acts. The Court of Appeals overturned the conviction. The Supreme Court emphasized that the determination of persecutory acts, or stalking, is context dependent, and that simply because a mocking post is made on a social media platform does not mean it is automatically an illegitimate form of expression.

Facts

An Italian man, Z.P., had created a Facebook page with posts mocking two other people, B.B. and M.F. Although the page did not reveal their identities and did not specify any identifying features of the two, it was still perceived by B.B and M.F. as so pervasive that they changed their daily routines and complained that they lived in a state of anxiety and fear.

On June 13, 2017 the Court of First Instance of Milan found Z.P. guilty of persecutory acts in terms of Article 612-bis Italian Criminal Code.

On September 25, 2019, the judgment was overturned by the Criminal Court of Appeal of Milan. The Court found that the messages posted on the social network could not be regarded as persecutory, in that the victims deliberately and freely made the decision to read them.

The attorney general appealed to the Supreme Court.

Decision Overview

The Supreme Court held that the appeal was inadmissible from a procedural point of view. However, it did examine the limits of the right to freedom of expression.

The attorney general argued that the appellate court had disregarded that, because they can have a great reach, posts on Facebook are intrinsically harmful irrespective of the victims’ choice to read them or not.

The Court agreed with the Court of Appeals that the Facebook page created by Z.P. contained merely mocking posts which did not indicate the names or any other reference which may have led to B.B. and M.F. The Court held that the element characterizing persecutory acts, namely the invasiveness connected to private messages (SMS, WhatsApp, etc.) was lacking. It found that the posts had an “ironic” or “mocking” intent, which is legitimate in that it represents a manifestation of the right to freedom of speech, in the form of the “right of criticism”.

The Court affirmed the following principle: “On the subject of persecutory acts, the conduct referred to in Article 612-bis of the Italian Criminal Code [persecutory acts] does not include the publication of merely mocking and derisive posts on a Facebook page, freely accessible to anyone, lacking the requirement of inevitable invasiveness connected with the sending of “private” messages (SMS, WhatsApp) or telephone calls. The publication of such posts is legitimate where it falls within the limits of the legitimate freedom of expression and the right of criticism”.