Defamation / Reputation
Hlynsdottir v. Iceland (no. 2)
Closed Mixed Outcome
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The Italian Supreme Court overturned a Court of Appeal decision and held that the editor of an online blog can be held criminally responsible for the publication of a defamatory article on his online platform. The Court determined that blogs, like traditional newspapers, fall within the notion of “the press” as provided for by law, and as such are subject to constitutional and basic regulations governing the distribution of information to the public. Therefore editors and administrators of such websites are responsible for upholding professional editorial standards and practices before posting content publicly. The Court held that the editor’s liability cannot be exempted for content published anonymously and held that his responsibility applied for the entire time that the article was accessible online.
In 2011, the online blog “PrimaPagineMolise.it”, edited and administered by Nicola Dell’Olmo, posted an anonymous opinion piece criticizing the reporting and professional conduct of the journalist Vinicio D’Ambrosio. The impugned article alleged that Mr. D’Ambrosio was involved with corrupt activities relating to the expenditure of public funds. In response Mr. D’Ambrosio filed an application before the Court of Campobasso, arguing that the publication included defamatory information and statements which infringed upon his honor and right to reputation. The First Instance Court held that the article was defamatory and sentenced him to 4 months imprisonment and the penalty of 350 Euro, but the Court of Appeal of Campobasso overturned that judgment, finding that the conduct was not unlawful.
D’Ambrosio appealed this ruling to the Italian Supreme Court.
D’Ambrosio argued that the Court of Appeal had erroneously considered that the editor and administrator of the online blog was not aware of the publication of the offending article. He referred to the Court of First Instance’s judgment which had recognized that Dell’Olmo should be held responsible for the publication of the article since he was the editor-in-chief as well as the administrator of the website. In addition, D’Ambrosio noted that the Court of Appeal had taken into account the length of time the publication was online, which he argued, demonstrated that Dell’Olmo had to have been aware of the article’s existence. D’Ambrosio further submitted that the identity of the article’s author was irrelevant, under these circumstances. D’Ambrosio argued that the standards applied to online publications should be the same as for newspapers, and therefore the obligations on editors of online blogs should be the same as those on newspaper editors. D’Ambrosio submitted that the Court of Appeal had erred in finding that the facts and the statements were within the limits of the right to criticize and that the article complied with the principles of truth, dignity and public interest.
The Supreme Court held that the Court of Appeal had made an error by not finding Dell’Olmo criminally liable for failing to exercise professional standards and editorial control over the published content online.
The Court held that online blogs, like traditional newspapers, fall within the notion of “the press” as provided for by art. 1 of the law 8 February 1948, n. 47 because they are editorial products subject to constitutional and basic regulations governing the distribution of information to the public. The Court noted that, like a newspaper, a digital blog has a designated editor, is published regularly, aims to review, comment and critique events for the general public, is managed by an editor who is a member of the Journalists’ Register (Albo dei Giornalisti), is registered with the Court in the location where the editorial staff is based, is hosted by a provider, and is registered at the ROC (an Italian public register where media operators are obliged to register).
Accordingly, the Court noted that not only do the constitutional guarantees protecting the press and freedom of expression provided for by article 21 of the Italian Constitution apply in the case, but also article 57 of the Italian Criminal Code (the Code) which establishes penalties for editorial negligence. The Court confirmed that article 57 of the Code extends to the publication of anonymous articles.
The Court acknowledged the difference between an article published on an online blog and general comments uploaded to the Internet by a user directly. It distinguished this case from a previous case, the case of Daniela Hamaui (Supreme Court No. 44126, 2011), involving user comments on the Internet. The Court held that the guarantees and obligations applicable to the press should apply only to editorial content and not to general comments posted by users because editors of online blogs cannot be held liable for third-party conduct.
The Court held that the editor’s liability is not limited to the publication of defamatory material posted anonymously. In addition, the Court noted that online publications must have an editorial system in place to review content before it is posted publicly, which is distinct from content that is uploaded by users or third-parties.
The Court recognized that the offending article was accessible online for a period of one year and could have been viewed by innumerable persons. Therefore, the Court found that the editorial liability for defamatory online content should not be limited to the act of initial publication, but should extend for the entire period during which the content is accessible online. Accordingly, the failure of the editor to uphold his or her professional responsibilities should be assessed in relation to the entire duration of the time the content was publicly accessible.
The Supreme Court therefore dismissed the decision of the Court of Appeal.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment extends the scope of criminal defamation which applies to the editors and publishers of print media, to editors, owners and administrators of online publications, and imposes liability on the editor or owner for the entire period the defamatory content is available online. Moreover, the constitutional provisions applicable to the traditional press are extended to online publications by virtue of the equivalent status of the former and the latter.
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