In a disappointing decision, the Court of Cassation upheld the civil liability of journalist Fabio Butera for comments posted by third parties beneath a post on his Facebook page. By endorsing the lower court’s reasoning, the Court confirmed a legal approach that effectively requires journalists and ordinary social media users to monitor and remove third-party comments to avoid liability. This risks discouraging individuals from hosting or facilitating public discussion online.
The case arose from a 2018 Facebook post in which Butera criticised a news report by journalist Valentino Gonzato claiming that asylum seekers in Vicenza had protested for a pay-TV subscription to watch football matches. Gonzato subsequently brought civil defamation proceedings against Butera.
While the domestic courts found that Butera’s own post was not defamatory, they held that several comments posted by third parties beneath it were. The Court ordered Butera to pay damages for failing to remove them.
Earlier this year, ARTICLE 19 published a detailed analysis urging the Court to overturn the lower court’s decision and affirm that users should not be held liable for comments posted by third parties.
Chantal Joris, interim Head of Law and Policy at ARTICLE 19, said:
“This judgment sets a dangerous precedent for free expression online. Journalists and ordinary users should be responsible for what they say, not for what others post beneath their content. By exposing users to liability for third-party comments, the Court creates powerful incentives for private individuals to restrict speech and limit opportunities for public discussion.
“The ruling is also open to abuse: those seeking to silence journalists, activists or other public figures could deliberately post unlawful comments beneath their content to expose them to legal risk or pressure them into restricting debate.”
ARTICLE 19 is particularly concerned by three aspects of the Court’s reasoning.
First, we are concerned that the Court’s broad invocation of ‘disinformation’ as conduct falling outside the democratic role of the press risks undermining established protections for freedom of expression. While ARTICLE 19 recognises that knowingly false factual allegations may, in certain circumstances, give rise to civil liability, responses to disinformation must still be carefully assessed for their impact on freedom of expression. In the present case, this includes, in particular, assessing the impact of imposing liability for third party comments under the requirements of legality, necessity and proportionality.
Second, the Court emphasised the distinction between the absence of a general obligation to monitor comments before publication and a duty to carry out ex post monitoring. In practice, however, this distinction offers little protection. Users will have every incentive to monitor discussions continuously and remove comments at the first sign of legal risk, leading to greater private censorship.
Third, the Court failed to engage meaningfully with Article 10 of the European Convention on Human Rights (ECHR) and the evolving jurisprudence of the European Court of Human Rights (ECtHR), including in Pătrașcu v. Romania. ARTICLE 19 is concerned by the Court’s attempt to distinguish Butera’s case from Pătrașcu on the basis that the former involved ‘untrue facts’ rather than criticism. This overlooks the broader principle that imposing liability for third-party comments requires careful scrutiny under Article 10 of the ECHR irrespective of the nature of those third-party comments. In addition, the Court’s suggestion that the ECtHR’s reasoning is of limited relevance because the case originated in another European Union member state is also unpersuasive. The ECtHR’s jurisprudence provides authoritative guidance on the ECHR obligations of all states parties to the Council of Europe, including Italy.
The judgment underscores the need for courts to more carefully assess the impact of liability for third-party comments on freedom of expression. This requires, in particular, meaningful engagement with the risk that such liability may undermine open and pluralistic online debate.