Italy’s Court of Cassation upholds liability for third-party Facebook comments, drawing criticism from ARTICLE 19

The Court of Cassation of Italy has upheld the civil liability of journalist Fabio Butera for defamatory comments posted by third parties beneath one of his Facebook posts, confirming a lower court ruling that found he failed to remove unlawful comments published by other users. The judgement has prompted criticism from the free expression organisation ARTICLE 19, which argues that the decision could encourage greater private censorship and discourage online public debate.

The case stems from a 2018 Facebook post in which Butera criticised a news report by journalist Valentino Gonzato concerning asylum seekers in Vicenza. Gonzato subsequently initiated civil defamation proceedings against Butera. Although the Italian courts concluded that Butera’s own Facebook post was not defamatory, they ruled that several comments posted by other Facebook users beneath the post were defamatory and held Butera liable for failing to remove them, ordering him to pay damages.

Prior to the judgement, ARTICLE 19 had submitted legal analysis urging the Court of Cassation to overturn the lower court’s decision and affirm that individuals should not be held legally responsible for comments published by third parties on their social media pages.

Following the ruling, ARTICLE 19 stated that the decision establishes a concerning precedent for online freedom of expression. The organisation argues that by holding users responsible for third-party comments, the judgment creates strong incentives for journalists and ordinary social media users to actively monitor discussions and remove potentially contentious comments to avoid legal liability, potentially limiting opportunities for public debate.

ARTICLE 19 also expressed concern that the ruling could be exploited by individuals seeking to silence journalists, activists, or other public figures by deliberately posting unlawful comments beneath their content in an effort to expose them to legal risks or encourage self-censorship.

The organisation identified three aspects of the Court’s reasoning that it considers particularly problematic.

First, ARTICLE 19 argued that the Court’s references to ‘disinformation’ risk weakening established protections for freedom of expression. While acknowledging that knowingly false factual statements may in some circumstances result in civil liability, ARTICLE 19 maintains that any restrictions must still satisfy the principles of legality, necessity, and proportionality, particularly when liability is imposed for comments made by third parties.

Second, ARTICLE 19 criticised the Court’s distinction between the absence of a general obligation to monitor comments before publication and an obligation to remove unlawful comments after they appear. According to the organisation, this distinction provides limited practical protection because users may feel compelled to continuously monitor discussions and remove comments at the earliest sign of legal risk.

Third, ARTICLE 19 argued that the Court did not adequately consider Article 10 of the European Convention on Human Rights (ECHR) or relevant case law from the European Court of Human Rights (ECtHR), including the judgment in Pătrașcu v. Romania. The organisation stated that liability for third-party comments should be carefully assessed under Article 10 regardless of whether the comments concern factual assertions or expressions of opinion, and noted that ECtHR jurisprudence provides authoritative guidance for all Council of Europe member states, including Italy.

The Court of Cassation’s judgement confirms the lower courts’ interpretation of Italian civil liability in this case. However, the broader implications for online platforms, journalists, and social media users remain the subject of ongoing debate among free expression advocates.

Why this matters

The ruling contributes to the wider European discussion on the balance between protecting individuals from defamatory content and safeguarding freedom of expression online. While the Italian courts held that liability may arise when users fail to remove unlawful third-party comments, ARTICLE 19 argues that such an approach could encourage excessive moderation and self-censorship by those hosting online discussions. The case also highlights continuing legal questions about the responsibilities of social media users, the application of human rights standards to online speech, and the extent to which individuals should be held accountable for content posted by others.