COMPUTER CRIMES
Court of Cassation: sending defamatory certified -mails (PEC) to several recipients does not automatically constitute an aggravating circumstance.
With ruling no. 31179 of 18 July 2023, the Supreme Court of Cassation - on a case of aggravated defamation by sending a message via PEC to a group of addressees - excludes the existence of the aggravating circumstance pursuant to art. 595, c. 3, of the Criminal Code (dissemination by the press or by other advertising systems) considering that the defamatory missive was intended for a limited number of addressees and that there was no evidence that the PECs of such addressees were physiologically intended for a limited number of addressees. (dissemination by means of the press or by means of other advertising systems) considering that the defamatory missive was intended for a limited number of addressees and that there was no proof that the PECs of such addressees were physiologically usable by an indistinct group of subjects.
Therefore, neither aggravated defamation by the medium of the press nor by the medium of publicity can be identified. The fact that the e-mail was conveyed through the Internet does not detract from the fact that it was intended for a specific and circumscribed number of persons, since the medium used to transmit the communication (the PEC) cannot be confused with the diffusion of the Internet. The sending of a message to individual reserved mailboxes, in so far as they are in the name of individual users, in no way implies any automatic dissemination to an indeterminate number of persons.
In his arguments, he takes up the jurisprudence created on the subject, reiterating that "the transmission by certified electronic mail (PEC) of messages containing expressions injurious to/to the reputation of others integrates the crime of aggravated defamation even in the hypothesis of direct and exclusive destination to a single 'mail address: as the certification guarantees proof of the sending and delivery of the communication but does not exclude per se its potential accessibility to third parties other than the addressee for the purposes of consultation, extraction of a copy and printing, for the predictability of which, however, an increased burden of justification is required in concrete terms". Therefore, the sending of a defamatory e-mail to an e-mail box that is potentially accessible by several persons (such as institutional mailboxes that can be consulted not only by the addressee, but also by correspondence clerks) integrates the aggravating circumstance itself.
However, states the Court of Cassation, 'the possibility that the confidentiality of e-mail may be violated does not at all mean the transformation of the medium into a vehicle of publicity in all cases in which it is used, given that the very potential of the medium itself allows its qualification as a system of publicity (websites and social networks, Facebook, etc.) and an exclusively private use, since any pathology cannot affect this distinction'.
Therefore, neither aggravated defamation by the medium of the press nor by the medium of publicity can be identified. The fact that the e-mail was conveyed through the Internet does not detract from the fact that it was intended for a specific and circumscribed number of persons, since the medium used to transmit the communication (the PEC) cannot be confused with the diffusion of the Internet. The sending of a message to individual reserved mailboxes, in so far as they are in the name of individual users, in no way implies any automatic dissemination to an indeterminate number of persons.
In his arguments, he takes up the jurisprudence created on the subject, reiterating that "the transmission by certified electronic mail (PEC) of messages containing expressions injurious to/to the reputation of others integrates the crime of aggravated defamation even in the hypothesis of direct and exclusive destination to a single 'mail address: as the certification guarantees proof of the sending and delivery of the communication but does not exclude per se its potential accessibility to third parties other than the addressee for the purposes of consultation, extraction of a copy and printing, for the predictability of which, however, an increased burden of justification is required in concrete terms". Therefore, the sending of a defamatory e-mail to an e-mail box that is potentially accessible by several persons (such as institutional mailboxes that can be consulted not only by the addressee, but also by correspondence clerks) integrates the aggravating circumstance itself.
However, states the Court of Cassation, 'the possibility that the confidentiality of e-mail may be violated does not at all mean the transformation of the medium into a vehicle of publicity in all cases in which it is used, given that the very potential of the medium itself allows its qualification as a system of publicity (websites and social networks, Facebook, etc.) and an exclusively private use, since any pathology cannot affect this distinction'.
