The Criminal Section of the Italian Supreme Court has handed down judgment in a matter concerning the issue of whether the editor of a weekly on-line magazine could be held to be criminally liable for the libelous comments posted by the readers of such on-line magazine.
In first and second instance the defendant was found guilty on the grounds that, in the Court’s opinion, the latter had not seen to the cancellation of the libelous comments in question.
Judgment no. 44126/2011 of the Supreme Court excluded, however, the guilt of the defendant on the grounds that the latter had not committed a criminal offence.
Article 57 of the Italian Criminal Code (hereafter c.p.) punishes the failure to prevent the publication of libelous material and not the failure to remove it afterwards, with the result that the judgments of first and second instance had misconstrued the ratio of such provision (the purpose of which is to punish the editor’s failure to prevent the publication thereof and not the failure to subsequently see to its removal). In other words, the courts of first and second instance gave an interpretation of such provision which penalized the defendant and which, as such, was not allowed under Italian law.
The Supreme Court judges were also of the opinion that the interpretation given by the judges of first and second instance to such provision also constituted analogy in malam partem from another point of view, since article 57 c.p. refers exclusively to unlawful acts committed in the printed press and not to those committed on-line or in television.
The legal definition of printed press comes from Law no. 47 dated 1948 which sets out two conditions, and namely that the offending material is printed and that such material is intended to be published and distributed to the public at large.
The Supreme Court was of the opinion that both of the aforementioned requisites were missing in the case at hand since the news and comments contained in such on-line magazine were not reproduced and distributed on a physical medium but could only be viewed on a monitor (as was the case with news broadcasts; cfr., inr relation thereto, Italian Supreme Court judgment nos. 347177/08 and 205281/96, which excluded the liability of a news bulletin editor).
It must be pointed out, finally, how the aforementioned judgment is not an isolated case since it is in line with another recent judgment (and namely judgment no. 35511 dated July 16, 2010) concerning a similar case in which the Supreme Court judges ruled that the editor of on-line magazine could not be held liable pursuant to article 57 c.p.. “.
