“Privacy Versus Freedom Of Expression On The Internet: Some Comments From An Italian Perspective”

1. The rules and the principles involved.

A proper assessment of the problem needs to take into due

consideration some truly significant and fundamental principles of

the Italian legal system:

Section 2 of the Italian Constitution, which grants to any

individual the highest level of protection of its so-called

"inviolable rights", which comprehend1 the

right of having its "intimacy" and "private

sphere" respected,

Section 21 of the Constitution, which affirms any

individual's right to "freely express its thoughts by

speech, in writing or through any other mean of diffusion" and

which also bans any form of censorship with respect to press,

The provisions of Legislative Decree no. 196 of 2003, which

govern processing of personal data,

Even though indirectly, also Sections 7 and 10 of the Italian

Civil Code (granting protection to a person's name and

image).

Those rules and principles frequently touch – and some

times clash - on each other, especially when related to the

Internet, a context characterized by infinite potential and

unexpected developments, by social models radically new and in

permanent evolution, but also by undeniable risks and an increasing

amount of problems.

2. The difficult coexistence between "Freedom of

Expression" and "Rules" and

"Control".

2.1. Addressing an audience during the recent

European Data Protection Day2, the Italian Information

Commissioner ("Autorità Garante per la protezione dei

dati personali") has stressed the need of achieving a balanced

coexistence on virtual platforms between freedom of expression and

right to privacy.

While calling for "rules", apt both, to maintain the

free and open nature of the Web as well as to grant Net

citizens' rights, the Commissioner had to admit that efficient

protection of "on-line rights" necessarily implies

adequate user consciousness about the many and serious risks

present on the Internet.

He therefore felt that "coexistence" could only be

achieved by:

through an adequate level of awareness about potential uses of

personal data made available on the Internet,

by promoting efficient means of self-regulation, aimed at

diffusing 'responsible behaviour' and at recommending

'accurate selection' with respect to personal (in

particular, sensitive) data uploaded to the on-line world,

by increased involvement of Providers, who were invited to

focus on adequate user information/education and to offer specific

technical means for preventing unconditional access of data by

search engines or allowing to limit – at least partially

– profiles' visibility.

As to the most common risks involved by on-line activities:

a recent study indicates that 77% of all employment research is

already performed via the Internet, being 35% of candidates'

applications turned down based on personal information found on the

Web,

while the Internet is certainly perceived as a valuable and

crucial resource, the public opinion nevertheless tends to be quite

'sensitive' not only about 'what' goes

on-line, but also about 'how' information is made

available on the Web (recently a press notice, reporting about

nurses who had posted pictures of hospitalized patients together

with ironic comments, determined both, harsh protest in the public

opinion as well as strong reactions from the employer and Public

Authorities),

in another recent case a teacher found himself on a social

network depicted while smoking a cigarette in class and for that

faced later on a proceeding before a Regional Administrative Court,

which awarded him with a 8.000,00 Euro compensation judgement for

damages procured to his School Administration's

image3.

2.2. Periodically lawmakers, approached by

various lobbies, feel also necessary to address the issue of

stricter Internet control. Usually the pressure on lawmakers comes

from groups advocating legislative reaction directed to protect

minors on-line, to fight pedo-pornography, to prevent

bullying/harassing attitudes (e. g. stalking) or to achieve more

efficient protection of IP rights on the Internet.

In 2008 an intense public debate arouse with respect to a

controversial bill, which aimed at introducing tighter control over

social websites and to the purpose intended:

to impose on access (not hosting or content) providers a

specific monitoring obligation over on-line content,

to entitle the Home Department to block illegal on-line content

through cease and desist injunction issued by courts and to order

access providers to adopt filter systems (little thought was

deserved to how the blocking of specific web pages/sections would

be achieved from a technical perspective; the problem was simply

"shifted" to the indications of a future Ministerial

Decree, which would have had to to explain how to grant an

efficient filtering),

to obtain from providers isolation/blocking of illegal content

within a time frame of 24 hours (non compliance would imply a fine

from Euro 50.000 up to 250.000 and criminal charges resulting in

arrest from 6 month to 5 years).

The bill, being strongly opposed for patent censorship

implications and heavily criticized for unacceptable 'technical

ignorance' as to the Web's functioning, was momentarily

abandoned and isn't likely to make it easily through the

Italian Parliament in the future.

3. Freedom of Expression on the Web.

Italian Courts – similar to their peers in other

jurisdictions - found themselves facing the problem of transferring

the traditional principles and rules to on-line activities,

interactions and communication.

With the "explosion" of on-line publications,

discussion/news forums, blogs and similar platforms/virtual places,

assessing how long-standing fundamental principles and 'legal

tradition' originating from both, existing Statute Law as well

as from interpretation delivered during the years by local Courts,

would impact on these new means of communication became quickly a

key aspect Italian judges had to deal with more and more

frequently. They had to put themselves questions (and to answer

them) like "What's actually a Blog? Is it an on-line

'editorial product' (as such - just like a newspaper -

subject to the provisions governing press)? Is the position of the

individual running a Blog somehow similar to that of a Chief

Editor?

3.1. A First Instance Court

("Tribunale") in Aosta answered the questions

affirmatively4, when approached with a complaint for a

criminal offence of defamation, which the plaintiff assumed had

been performed through a number of posts on a Blog. According to

the Italian Criminal Code (Section 595) the respective charges

– if found grounded - potentially involve a sentence from

6 months up to 3 years in jail or – alternatively - a

fine. In addition, Section 596-bis establishes

"co-liability" of the Chief Editor, the Publisher or the

Printer, if such offence is performed through the press.

In the specific case the Court found that:

The individual running a Blog is clearly to be held as the

"responsible editor/manager",

Having the Blogger the faculty of monitoring content posted,

his position was not different from that of a newspaper's Chief

Editor,

Such conclusion was justified by the fact that an individual

managing a Blog has complete and unconditional control on the

content posted and therefore – just...