By decision No. 40033 on 3.10.2023, the Italian Supreme Court of Cassation overruled the conviction for the crime of harassment on social media because the fact does not exist.

Harassment on social media

The defendant had sent a friend request on her natural children’s Facebook profile, had sent similar messages to their adoptive parents, had subsequently contacted their adoptive paternal grandmother via Facebook and Instagram, and had posted photographs of her natural children together with their adoptive parents on Facebook and Instagram, labelling such photos with the phrase “my children”, and had been prosecuted and then convicted for committing the offence of harassment of persons.

The rule of harassment of persons

Article 660 of the Italian criminal code punishes anyone who, in a public place or a place open to the public, or by means of telephone, for petulance or other blameworthy reasons, harasses or annoys anyone.

Some examples of telematic harassment relevant as a crime

For example, harassing communications made by telematic messaging, joint to an alert or preview system, cause them to become as invasive as those made by means of telephone and, therefore, are criminally relevant under Article 660 of the Italian Criminal Code; communications made by electronic mail could be outside the scope of the criminal offence but may fall within it if received on an “equipped” telephone, which allows immediate interaction between sender and recipient.

The question addressed by the Italian Court of Cassation

The defendant appealed in cassation against the conviction. The Italian Court of Cassation addressed the problem of the applicability of this criminal offence to the harassment or disturbance via social media, verifying whether the meaning of the phrase “by means of telephone“, written when social media did not yet exist, could also include the unwelcome modes of interference in the lives of others allowed by technological development and not imagined by the legislator when writing the rule.

The premise highlighted by the Supreme Court is that the phrase “by means of telephone” contained in Article 660 of the Criminal Code must be read as referring to the use of telephone lines and not to the telephone as an electronic device. Therefore, the interpretation of the phrase “by means of telephone” as referring to the use of telephone lines, as a vehicle for harassing communication, allows the act of sending harassing telematic messages to be included in the scope of the criminally relevant, for the purposes of Article 660 of the Criminal Code, even in the context of current technological development, characterised by very different types of telephone lines (analogue, digital, satellite, fibre optic) without having to consider the problem of the type of access to the network used by the harassing message sender. The pivotal point, however, is another, emphasised by the Court of Appeal: the assimilation of harassment by instant messaging to the one punished by Article 660 of the Criminal Code is justified insofar as the medium used was characterised in concrete by an invasiveness similar to that of the harassing telephone call.

The solution given by the Italian Court of Cassation

Given that the alert or preview systems joint to the long-distance communication make it sufficiently invasive to be considered harassing according to the meaning of Article 660 of the Criminal Code, the Italian Supreme Court observed that whether or not an alert or preview system exists depends, in reality, not on the sender, but on the recipient, who may freely decide whether to allow the telematic messaging application to send him notification of receipt of a message.

The possibility for the recipient of the communication to avoid immediate interaction with the sender and to place a filter on the communication at a distance, allowing him to decide not to be reached but when he freely decides to do so, makes, in fact, this form of communication objectively less invasive than the one carried out by telephone.

In the typical case of harassment by telephone, this harassment has the characteristic of being imposed on the addressee, with no possibility for the latter to escape immediate interaction with the sender; on the other hand, notifications of incoming messages in Instagram and Facebook applications can be activated by free choice of the person receiving them.

Therefore, the Italian Court of Cassation held that in these cases there is no criminal offence under Article 660 of the Criminal Code.