Attorney General v. Mr. Z.P.
Closed Expands Expression
- Mode of Expression
Electronic / Internet-based Communication
- Date of Decision
November 3, 2020
Inadmissible, Affirmed Lower Court
- Case Number
- Region & Country
Italy, Europe and Central Asia
- Judicial Body
Supreme (court of final appeal)
- Type of Law
Facebook, Social Media
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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.
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.
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”.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling contributes to a growing Italian jurisprudence on legitimate online expression. It is consistent with previous and subsequent decisions of the Italian Criminal Supreme Court on the interaction between opinions expressed on Facebook and persecutory acts. The Court has explained in different occasions (including, recently, in Cass. pen., n. 19363, May 17, 2021) that the evaluation of the criminal relevance of the posting of offensive or threatening posts on Facebook depends on the specific facts and may, therefore, change case by case. A post is more likely to be considered a legitimate exercise of the right to freedom of expression if it does not result in an excessive invasiveness of the private sphere of the subject targeted and, more relevantly, if it does result in the concrete harassment of the subject. Therefore, it is not the means (e.g., the social network Facebook) through which the thought is conveyed that is decisive in the evaluation of the criminal relevance of the fact, but rather the peculiarities of the conduct and its ability to harm the targeted subject.
In this case, the Supreme Court clearly states that mocking and derisive posts on Facebook shall be regarded as a legitimate exercise of the right to freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Table of Authorities
National standards, law or jurisprudence
- It., Criminal Code, art. 612-bis
- It., Constitution of Italy (1947), art. 21.
Case significance refers to how influential the case is and how its significance changes over time.
The decision establishes a binding or persuasive precedent within its jurisdiction.
Official Case Documents
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