With its recent ruling n. 5352 of February 5^th 2018, the Fifth Chamber of the Italian Supreme Court (hereinafter: S.C.) stated a principle according to which libel crimes committed on-line – ex art. 595, co.3 of the Italian Criminal Code – cannot be considered to be charged in the absence of the prior verification of the Internet Protocol address (IP) from which the defamatory message is originated.

In the case brought before the Court of Appeal, that same court had – by confirming the previous decision taken by the Court of First Instance – beforehand condemned the defendant for having offended a major’s reputation by posting a slanderous message on the social network Facebook.

More specifically, the Court of Appeal based its decision on serious, precise and consistent clues – according to art. 192 of the Italian Code of Criminal Procedure – including: the message’s origin from the defendant’s Facebook profile, with her name and surname; the kind of topics discussed within the forum – concerning some worker’s claims of interest to the woman, who was a workers’ union official when the facts occurred; the lack of any previous report for identity theft or name and surname misuse by third parties.

The defendant appealed the aforementioned decision before the S.C. on the basis of: an alleged disagreement among the proofs; the lack of any investigation in relation to the IP address being the source of the libel; the fact that the defendant did not personally know the major; the absence of any kind of quarrel with him; the different activity carried out by trade union of the defendant (operating in the field of chemicals) with the one of the workers belonging to the field of the community services.

More precisely, the defendant brought the exception concerning the lack of any verification procedures about the IP address of origin of the post, i.e. the digital code that enables the identification of a specific electronic device – and consequently it enables the further identification of its owner and thus, the author of the slanderous post – when the same device accesses the net from a precise location. Furthermore, the defendant alleged the lack of evidence with regard to the log files containing the timetable and the duration of the connection.

The decision of the S.C. upheld the position taken by the defendant underlying - through a concise but exhaustive motivation – the fact that the previous judgement rendered by the Court of Appeal was lacking in considering the defendant’s thesis according to which in spite of the nickname, the IP address represent itself a set of data which are to be considered sufficient to identify the owner of the phone line.

Moreover, the Court of Appeal in its decision did not take into account the lack of proof in relation to the identification of time and the duration of the connection.

In reason of the above-explained motivations, the S.C. concluded that the Court of Appeal’s decision, was defective in motivation since it forgot to have due consideration of the defendant’s reasoning and because theoretically it was not possible to exclude tout court the possibility that any third party made use of the defendant’s nickname in posting the message on the forum.