Content Regulation / Censorship, Freedom of Association and Assembly / Protests, Hate Speech, Political Expression
Brandenburg v. Ohio
Closed Expands Expression
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The Court of Appeals of Turin found that the defendant, a political figure, had lawfully exercised his right to freedom of expression. The claimant, Foundation of the Egyptian Museum of Turin, had brought an action requesting compensation for non-pecuniary damages to its reputation following the defendant’s dissemination of a video on Facebook showing a staged phone call to the Foundations’ switchboard criticizing a special ticket promotion for the Arabic speaking community. The Foundation claimed that the defendant’s expression did not fall within the limits of the right to criticism as it was inflammatory and constituted hate speech. The Court of First Instance of Turin considered the claim to be partially well-founded. It recognised the compensation for the non-pecuniary damages to the Foundation and ordered the removal of the video from any profile belonging to the user in question on Facebook or other social networks. The Court of Appeals of Turin reversed this decision finding that although the video was staged, the “caller” did not use offensive language and voiced an opinion based on verifiable facts.
In 2017, the Foundation Museo delle Antichità Egizie di Torino launched the campaign “Fortunato chi parla arabo” which offered Arabic-speaking citizens the opportunity to visit the Museum on a special offer of two people for the price of a single ticket, with the aim of bringing the Arab community closer to its collections.
A Facebook user (Andrea Crippa), at the time head of the right-wing Young Padans Movement, published a video of a fake phone call in which he expressed heavy criticism of the initiative with an alleged switchboard operator of the Foundation. During the phone call he lamented that the initiative was causing “reversed discrimination” and claimed that Arabic people would benefit from State funds (paid by Italians) to the detriment of Italian citizens. The posted video was accompanied by derogatory comments expressing discontent towards the initiative (e.g., “At the Egyptian Museum free admission for Arabs. What about Italians? They pay”, “Let’s spread this outrageous news”, “Let’s make them hear what we think!”).
Within a few days, the content reached a million views on the Facebook pages of the defendant. The content elicited racist polemical comments, and gratuitous attacks against the Foundation which was accused of stealing Italians’ money. The effect of sharing the content in question fueled discord not only online but also harassment of the Museum’s switchboard operators who were insulted and threatened on the phone.
At the beginning of 2018, the Foundation brought an action before the Court of First Instance of Turin requesting compensation for non-pecuniary damages complaining of the serious damage to the image, reputation, and trademark of the Museum. This damage resulted from the circulation of false content which not only attributed to the Foundation false declarations but also spread false information regarding the receipt of State funds by the Museum. This conduct, in the opinion of the claimant, clearly overstepped the boundaries of the right to freedom of expression and, in particular, of the right to criticism.
The Court of First Instance of Turin upheld the claim raised by the Foundation. It found that the defendant had not met the requirements of the constitutional right to criticism, which finds its legal basis in Article 21 of the Italian Constitution (Right to freedom of expression). It shall be recalled that the requirements of the right to criticism (established by the case law) are: 1) the piece of information shared shall be true; 2) there shall be a public interest in the knowledge of the fact (so-called “relevance”); 3) the facts shall be presented in a form which does not harm the honour of the person or entity involved (“restraint”). The fake phone call did not contain the defendant’s opinion but rather false information regarding the Museum. By sharing that the Museum’s initiative in favour of Arabic-speaking individuals was funded by the State, the defendant aimed at fueling hate and aggressions towards the Foundation. Further, both the phone call and the comments accompanying the video posted online did not meet the requirement of restraint (i.e., civilised form of expression). In light of this, the Judge ordered first the defendant to pay 15,000 euro in non-pecuniary damages and, second, the removal of the video from any profile associated with the defendant on Facebook or other social networks. Finally, it issued an injunction against the further dissemination of the video.
Mr. Crippa appealed the decision, which was later overturned by the Court of Appeals of Turin.
What is the legal definition or basis for the right to criticism? Did the court refer to a statute?
The Court of Appeals of Turin had to determine whether Mr. Crippa had lawfully exercised his right to political criticism or, rather, had exceeded the limits thereof.
The plaintiff, Mr. Crippa, appealed the decision demanding that the Court overturn it. He claimed that the Court of First Instance had mistakenly considered the video posted on Facebook as “a fake news which defamed and offended” the Foundation, while it was, in fact, only a lawful expression of his right to political criticism. He further contested the Court’s decision to qualify the words written in the video as hate speech fostering hatred towards the Museum. He specified that the sentence “Let’s make them hear what we think” was merely directed at inviting those who shared his political orientation to express their opinion on the matter.
The Foundation requested the ruling of the Court of First Instance to be entirely upheld, and observed that, due to the video posted by the defendant (which went viral on social media), the switchboard of the Museum had been “literally bombarded by heavily insulting and offensive phone calls”.
According to the Court of Appeals of Turin, the defendant did not exceed the scope of the exercise of the right to criticism. The Court reasoned that the false interview had not perniciously compromised the objective truth of the message. The defendant had not altered the primary fact that the special ticket promotion organized by the Foundation was exclusively for Arabs. The Court also distinguished between the falseness of the message and the means of communication (i.e., the fake phone call). In any case, the choice to express his opinion through the staging of this phone call was considered lawful in light of Article 21 of the Italian Constitution which establishes that expression can be manifested freely and with every means of communication. Likewise, the language used by the defendant was never offensive, also in light of the decision of the Judge for Preliminary Investigations of Turin, who dismissed the criminal case stressing that the defendant had never overstepped the limit of personal and gratuitous offence against the Foundation.
The decision also recognized that the defendant had legitimately exercised his right to criticize. Political figures are known for expressing opinions and ideas through rhetorical and exaggerated language as a form of political oratory, notoriously aimed not only at convincing the electorate rationally, but also at persuading them by appealing to their emotions. These expressions can also be evocative, allusive, redundant, colorful, exorbitant and often exaggerate the scope of a certain piece of news or a certain event of public interest. According to the Court, this form of speech is certainly permissible and tolerated in the “democratic game”, and this is particularly relevant in the age of social media.
The Court of Appeal also disagreed that the Foundation does not receive any funding from the State to carry out its activities. These are not only based on internal revenues deriving from the annual contributions of the founding members and resources of a private nature. Even payments from local and regional authorities are part of the State public contributions to the activities of the Foundation. In addition, the Court clarified that the special promotion was also aimed not only at Arabs but also at the “New Italians”, Arabic-speaking citizens, and in particular, the “New Torinese” of Arabic language to promote social inclusion.
Further, the video could not be considered offensive for claiming the initiative was shameful and discriminatory against Italian citizens, not of Arab origin, language and culture. Even the statement “Let’s make them hear what we think” which had triggered hate and insults towards the Museum was not considered to incite or offend the other party, nor could the invitation to make themselves heard in itself be read and interpreted as an incitement to hatred. The Court underlined that the Museum could have directly denounced the haters calling them, rather than the defendant.
Therefore, the Court reversed the decision, thus recognising that the defendant had legitimately exercised his right to freedom of expression.
what is “the invitation” referring to?
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The case expands freedom of expression. The Court of Appeals of Turin has reversed the decision of the Court of First Instance which ordered the defendant to pay damages and the removal of content on social media. The expansion of political speech is critical for the protection of the right to free speech. However, this case also underlines the challenges of addressing the spread of disinformation and hate speech online.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.