A few days ago, the Court of Cassation, with judgment no. 4498 filed at the Court Registry on 14 February 2019, overturned the well-established principle according to which, on the subject of defamation in the press or by any other means of advertising, or in a public document, the offence can be committed even in the absence of explicit indications of names and when the subjects are identifiable through references to the activities carried out.

The position recently adopted by the Court of Appeal is based on the fact that the offence against the reputation required to constitute a defamatory offence presupposes the identification of the defamed party on the basis of elements that are objectively such as to bring the offending fact to bear on a specific person, thus confirming the principle according to which “the indication of the surname alone is not, as a rule, sufficient if it does not have an immediate identifying capacity” (Court of Cassation no. 21424/2014).

In fact, according to the Court of Appeal, despite the fact that the data disseminated were such “in their specificity” as to express “immediate individualising potential”, the reasoning was ultimately apparent and excluded the identification of the subject.

In this sense, in accordance with nomofilactic hermeneutics, the Supreme Court upheld the first ground (the second concerning the individualising attitude absorbed and the third and fourth declared inadmissible) of the Court of Appeal of Catania, which had upheld the appeal against the decision of the Court of the same city, which had rejected the claim for damages arising from the damage to the right to image, personal identity, honour and reputation caused by the defendant company following the disclosure of false information on the personalities of two individuals.

To be even more precise and going to the bottom of the convoluted case under examination, the questions constituting the object of the grounds of appeal to the Court of Cassation, expressly declared absorbed, must be considered, by definition, undecided and can therefore be re-proposed without prejudice to the examination of the referring judge.

In essence, providing identification data of a person such as age, multiple criminal records and his residence in a particular city, does not represent “the existence of the requirement of the identifiability of the defamed person, necessary for the configuration of the defamatory offence”.

In this specific and complex case, however, very important for the judges was the fact that the Court did not give any intelligible and congruent account of how and why the errors in the press release (containing precise untrue information against the victim which was subsequently denied), were not suitable to exclude the identifiability of the subject with the victim.

In this regard, the Court has ruled on other occasions on this delicate matter, on the basis of compliance with the requirements of truthfulness and continuity of the form of expression in which they are reported, as well as the essential nature of the information.

The dissemination of the press release undoubtedly increased the damaging effect on the victim’s honour, widening the range of persons who became aware of the facts and were able to identify the alleged perpetrator, which, even if subsequently denied, nevertheless created damage (in fact, the first ground of appeal was found to be manifestly well-founded) but was not sufficient to constitute a defamatory offence for the reasons already set out above.

In fact, in this regard, there are many judges who (think of the Court of Catania in the case in question) do not follow the consolidated orientation based on the requirements of truthfulness, relevance and continence, stating that in the case of generic offence there is no crime.

Therefore, bypassing also the other deductions and defensive theses that the judges have partly validated, the offence of defamation can be said to be committed when the reputation of a person who, regardless of his or her name, is immediately identifiable is harmed; however, according to some guidelines and in these cases, this causes yet another laceration in the sphere of the right to privacy of the persons involved.

Source: Federprivacy.org – Avv. Vittorio Lombardi