DATA PROTECTION
Supreme Court: defamation by e-mail, jurisdiction is rooted where the message is downloaded.
In the case of e-mails with defamatory content, the offence is consummated with the 'delivery' of the electronic message at the recipient's computer. It is at that moment, therefore, that jurisdiction also takes root.
This was clarified by the Court of Cassation, with sentence no. 38144/2023, rejecting the appeal of a man sentenced by the Court of Palermo following the sending to hundreds of addresses of an e-mail message deemed offensive to his honour and reputation, who had complained about the lack of territorial jurisdiction of the Sicilian capital.
According to the applicant, in fact, it was not possible to determine the actual place where the offence was committed, since the defamatory message had been sent to 450 recipients. The territorial jurisdiction could not be rooted in the place of reception, as the judges of the merits held, but rather had to be determined either in the place of transmission or in that of the defendant's domicile.
The Fifth Criminal Section takes a different view. The offence of defamation, reads the decision, is an event offence, which is consummated at the time and in the place where third parties other than the agent and the offended person perceive the offensive expression. And e-mail is a 'communication directed to a predefined and exclusive addressee (even when there are several subjects to whom it is addressed), to whom it is delivered informatically at the adopting server, connecting to which, by means of its own device and using personal access keys, the latter can take cognisance of it'.
In the hypothesis of sending e-mail messages, unlike what happens for writings, images or voice files uploaded on websites or spread on social media, 'the requirement of communication with several persons cannot be presumed on the basis of the insertion of the offensive content in the network (i.e., in the present case, of their dispatch), but it is necessary at least to prove the actual delivery of the same, whether it is the consequence of an automatic operation set up by the addressee or of a dedicated access to the server'. In other words, proof that the message has been 'downloaded' - i.e. transferred to the address user's device - is sufficient, "while actual reading may be presumed, unless proven otherwise".
In the present case, the decision concludes, the evidence was reached 'at least with regard to two of the recipients of the message', and this is a sufficient condition to consider the place of commission of the offence 'to be the place where the receipt of the message took place, correctly identified in the city of Palermo for both recipients on the basis of what they stated at trial and not contested by the appellant'.
(Source: Il Sole 24 Ore - Author: Francesco Machina Grifeo - Ownership of the contents: Gruppo Il Sole 24 Ore).
This was clarified by the Court of Cassation, with sentence no. 38144/2023, rejecting the appeal of a man sentenced by the Court of Palermo following the sending to hundreds of addresses of an e-mail message deemed offensive to his honour and reputation, who had complained about the lack of territorial jurisdiction of the Sicilian capital.
According to the applicant, in fact, it was not possible to determine the actual place where the offence was committed, since the defamatory message had been sent to 450 recipients. The territorial jurisdiction could not be rooted in the place of reception, as the judges of the merits held, but rather had to be determined either in the place of transmission or in that of the defendant's domicile.
The Fifth Criminal Section takes a different view. The offence of defamation, reads the decision, is an event offence, which is consummated at the time and in the place where third parties other than the agent and the offended person perceive the offensive expression. And e-mail is a 'communication directed to a predefined and exclusive addressee (even when there are several subjects to whom it is addressed), to whom it is delivered informatically at the adopting server, connecting to which, by means of its own device and using personal access keys, the latter can take cognisance of it'.
In the hypothesis of sending e-mail messages, unlike what happens for writings, images or voice files uploaded on websites or spread on social media, 'the requirement of communication with several persons cannot be presumed on the basis of the insertion of the offensive content in the network (i.e., in the present case, of their dispatch), but it is necessary at least to prove the actual delivery of the same, whether it is the consequence of an automatic operation set up by the addressee or of a dedicated access to the server'. In other words, proof that the message has been 'downloaded' - i.e. transferred to the address user's device - is sufficient, "while actual reading may be presumed, unless proven otherwise".
In the present case, the decision concludes, the evidence was reached 'at least with regard to two of the recipients of the message', and this is a sufficient condition to consider the place of commission of the offence 'to be the place where the receipt of the message took place, correctly identified in the city of Palermo for both recipients on the basis of what they stated at trial and not contested by the appellant'.
(Source: Il Sole 24 Ore - Author: Francesco Machina Grifeo - Ownership of the contents: Gruppo Il Sole 24 Ore).
