Offenses on Facebook is aggravated defamation – American Lawyer

THE SUPREME COURT OF APPEAL

SECTION V CRIMINAL

Judgment August 25, 2015 – March 1, 2016, n. 8328

The facts

1. With a decision dated 18.12.2013 the G.U.P. the Palermo Court -revocato the penal order issued against M. M. dated 3.8.2012 – it condemned him to the penalty of EUR 1,500.00 in fines, with the decreasing of the expedited trials for the crime under Article. 595 cod. pen., paragraphs 1 and 3 cod. pen., for having offended the RF reputation, extraordinary commissioner of the Italian Red Cross, communicating with more people, by posting on his Facebook profile, some phrases, associating them – in some cases – to the image of predicted, including – “… to spring up the ass, the parasite is also capable of this,” with associated image R., – “… hero of sanitation, or parasite of the patronage system? When the scoundrels become pests, they are disgraced by newspapers … “, with associated image R., -” … I have to go fishing, I need a worm, what do you recommend? “, with associated image of R., -” … I’d eat at that parasite of FR, which is what one stone chewed …- to ‘… FR is just an ultra-paid mercenary, who cares not a fucking vulnerable, both he, the month, the salary takes it. … ‘.

2.Avverso that judgment the accused appealed to the Supreme Court, through his counsel, entrusted to a single plea with which complains, the occurrence of defects referred to ‘art. 606, first paragraph, letter. b), c) and e) Code of Criminal Procedure, non-compliance or incorrect application of the criminal law in relation to Articles. 595 C.P. and 192, 64 and 63 Code of Criminal Procedure, for failure to state reasons and manifest illogic of the same; in particular, the court of first instance has merely set out briefly in the contested judgment, the grounds on which he based the decision on the existence of the crime and the traceability of it to the applicant, without following proper procedures and adopting a logicomotivazionale verification of the test trial, in violation of the procedural rule in art. 192 Code of Criminal Procedure and the warranty claim by Articles logic. 63 and 64 c.p.p .; do not emerge in the case at hand unique and consistent evidence from which to draw the certainty of the attribution of the facts of the offense the accused nor emerges the certainty that such things are really glad; as denounced by the offended party defamation would be perpetuated by the accused on the notice board of the social network “Facebook” and as proof of the allegation, the injured party has self-published an alleged conversation, which has no probative value, given the ‘ absolute reproducibility and manufacturability scratch of the same from any PC that has a word processing program and, in any case, have not established the traceability of it to the accused; the judge also not having the certainty on the actual occurrence of those facts of the crime, had no opportunity to consider the identity of the offender if, in this case, you can identify flimsy circumstantial evidence, which, pursuant to 2 ° paragraph of art. 192 Code of Criminal Procedure, can not in any way give rise to a conviction; the G.u.p. He does not, then, given the disagreement between the p.o. and the accused, who long ago he was forced to sue the injured party, the victim, in turn, from a previous defamation (the R is investigated for libel in a case pending before the Court of Catania) ; the G.u.p. used, then, for the amenability of fact the accused a paper presented in proceedings before the Administrative Court which has as its object the same circumstances, but this fact is proof absolutely not be acquired and not evaluable for the decision, because it would be detrimental to every principle of guarantee provided for in the code for the benefit of the rite of the defendant which, however, in respect of any statement that might do to his disadvantage, must be made aware of the possibility of using that statement against himself in criminal proceedings as well as the right not to say anything that might jeopardize his position; the statements made by the person who from the beginning was to be heard with the guarantees contained in Article. 63 Code of Criminal Procedure are vitiated by uselessness and by that defect has affected the acquired memory, the only evidence against the accused.

Considered in law

The application can not be accepted, being in several places generic and in any event unfounded.

1. The judgment under appeal, contrary to the contentions ìn appeal without incurring vices, completely rebuilt after the story the subject of judgment, analyzed specifically the elements of responsibility against the accused, they were satisfied that the data acquisiti- objectives, specific and great depth indiziario- beds and coordinated globally among them, lead uniquely to the identification of the accused, as the author of the messages from harmful content in dispute.

2. The lower courts have reconstructed the story in the sense that, the little, RF, Extraordinary Commissioner of the Italian Red Cross, denounced on 30.12.2010 he was defamed by various parties, as part of a debate among web users, launched on pages of the social network Facebook in the month of December; initially the debate would have to cover decisions and initiatives taken by him, in recent years, the quality of the predicted administering agency, but some messages have gone beyond the ordinary right to criticize limits to result in overt attacks on his personal dignity; to prove his thesis, he enclosed a copy of the defendant, which he printed directly, traced some pages in the same period on the said website, in which they were inserted harmful expressions of his reputation: in many cases, the messages were coupled pure photographic reproductions of his person. The data entering the network – at least at first glance – were coming mainly from Facebook profiles of individuals, known to him as members on leave of the Military Corps of the Italian Red Cross, and among these, from that of ‘accused. During the trial it was willing CTU in order to ascertain, among other things, the ownership Facebook account from which they were branched network posts defamatory content, attributed to M. and acquired documentation, including documents collected in ‘disciplinary investigation, initiated by the Italian Red Cross against the accused, including a defense brief from the same defendant.

3. So clear, it is observed that, correctly, the judgment showed that the expressions indicated in the complaint by the R., of type “parasite of the patronage system,” or ° … when scoundrels become pests … ” or even “… I have to go fishing, I need a worm, what do you recommend? … posted on Facebook, and accompanied by photographic images, or, in the absence of such images, unequivocally directed to R., given the ‘giving the name of the same, “… I’d eat at that FR parasite, which is as good as one stone … chewed or” F. R. is just a mercenary ultra-paid, who cares not a fucking vulnerable, both he, per month, the salary takes …. “are inherently damaging to the reputation of the little, trasmodando in a free and unprovoked aggression of personal qualities of the R ..

3.1. Moreover, this Court has previously stated that the crime of defamation can be committed by means of the internet (see. Sec. 5, November 17, 2000, n. 4741 ; 4 April 2008 n. 16262; July 16, 2010 n. 35511 and, most recently, October 28, 2011 n. 44126), subsisting, in this case, the hypothesis of aggravated in the third paragraph of the contested provision (see. also on point, Cass., Sec. 5, n. 44980 of 16/10/2012, Rv. 254044), there being a presumption of the occurrence of the communication requirement with more people, being by its nature intended to be normally visited in very close times from an undetermined number of subjects (Sec. 5, n. 16262 of 04/04/2008). In particular, the spread of a defamatory message through the use of a bulletin board “facebook” constitute a case of slander aggravated under art. 595, third paragraph, cod. pen., as the spread of a message in the manner permitted by the use of a bulletin board for this facebook, has the potential to reach an unlimited number of people, and because to its ordinary meaning, message boards of this nature contain an appreciable number of people (without which the facebook board would not make sense), and because the use of facebook integrates one of the ways in which groups of individuals socialize their life experiences, emphasizing primarily the interpersonal relationship, which, for the medium used, takes on the profile of interpersonal relationship extended to an unspecified group of adherents to a constant socialization (Sec. 1, n. 24431 of 28/04/2015). Therefore, the conduct of post a comment on facebook board realizes the publicity and dissemination of it, for the suitability of the means used to determine the circulation of comments among a group of people, however, valuable for dialer, so that, if offensive that comment, its conduct falls within the described codicistica typing art. 595 Code of Criminal Procedure, paragraph (Sec. 1, n. 24431 of 04/28/2015).

3.2. The applicant disputes, first of all, that the sentences in dispute were actually stationed on Facebook and, however, that such sentences can be attributed to his person. These complaints, however, are carried out with fragmented vision of the elements acquired, emphasizing only the fact that the CTU, in charge of ascertaining the ownership Facebook account, from which they were branched network posts defamatory content, attributed to M. as well as to check the integrity / authenticity of the copies of Facebook pages, attached to the complaint of the injured party and to determine whether the IP address from which the connection was made, was attributable to the mobile telephone user, or to fixed users, it has highlighted that printed copies of Internet pages, attached to the complaint lodged by the injured party, did not offer themselves certain guarantees, or the authenticity and integrity of messages, either on their date, nor where they came from any site actually made out to ‘ today accused and that in view of the fact that any hard copy reproducing a Facebook page, if recovered without compliance with the standard procedures that guarantee the correct acquisition, might also be (if adequate the security mode, which in this case did not identify with certainty), the result of day adaptation or reworking operations to actually existing pages, but say different content. The applicant in this regard, however, fails to deal with the comments made by the Gup, that although the investigation and carried out technical assessments are incapable of evidence considered individually the actual correspondence between such messages and how discoverable network account, made payable to name of MM, however, do not rule definitively and exclusionary, that as alleged by the injured party has in fact occurred, nor the possibility that this is demonstrably different aspect, since it is confirmed by the technical findings, that an account in the name of MM , had been in effect operating in the network, during the period reported by R., to be switched off only afterwards. In addition, it highlighted the judgmental, that the same R. said – before the acquisition from the web of paper through the printer, without, however, adopting the standard procedures that would guarantee the authenticity – he got to find your Facebook account into question the widespread use of defamatory messages about him.

3.2.1. To this must be added that in the context of the evidence obtained, the judgment has given significant prominence, to the traceability of the accused offense, the fact that the latter – informed of the existence of the aforementioned messages to illegal content, placed on the site web made out to his name, in the investigation disciplinary procedure initiated against him, he never complained or reported abuse by any unknown persons responsible for having used, without his consent, its generality as a simple nickname in order to conceal his own, true identity, and the fact that in the memory at its signing, also tabled during the disciplinary proceedings, he has never denied the paternity of those phrases, nor the fact they had been placed by him on the net, account registered to his name.

3.2.2. In this memory, in particular, the defendant has certainly acknowledged the facts, stating that it was the first infringements were ascribed to him (in the face of praise received for the work performed as part of the CRI) and that the sentences and the impugned expressions were actually entered in his personal Facebook page, accessible only to a small number of users, without showing any intention to discredit the institution, constituting a mere personal outburst against a single, individual, vent, however, provoked some injustice he had suffered, because of repeated conduct of R ..

3.2.3. About all’inutilizzabilità to that statement in the applicant’s complaints it encounters totally unfounded. Properly, in fact, the G.u.p. considered that the memory in question – acquired in the process pursuant to art. 237 cpp, being signed document of the accused and therefore his provenienza- was fully usable and assessable for the assessment, expected that document from the accused will undoubtedly mean the document of which he is the author ‘s accused (Sec. 5, n. 33243 of 02/09/2015). This Court has, indeed, has repeatedly found that the statements contained in a memorandum from by the accused on the file of the process are used (Sec. 5, n. 28036 of 04/04/2013) to you according to rules in art. 192, first paragraph, cod. proc. pen, (Sec. 4, n. 9174 of 08/11/2011).

3.2.4. Moreover, contrary to what the applicant maintains, the confessorie statements or admissions by the accused contained in a document does not meet the limit coming to their usability established by art. 63 thereof, cod. proc. pen., since the provision refers only to the statements made before the courts, or to the police, in the course of preliminary investigations (Sec. 4, n. 27173 of 26.5.2015), although the latter do not concerning the person of the declarant (Sec. 3, n. 46767 of 23/11/2011). Therefore, all of the legitimately, the Court has used the memory of the accused signing – ammissiva of the facts – in one to the other elements deponent convergently to the responsibility of the accused regarding the offense charged.

4. The action must, therefore, be rejected and the applicant must be ordered to pay the costs.

PQM

rejects the appeal and order the appellant to pay court costs.