Social media before higher courts in Italy : a thorough adaptation of existing rules and protection of constitutional rights online

Abstract

Despite the lack of specific legislation regulating social media in Italy, national case law provides interesting insights into the protection of fundamental rights in the digital sphere. Over more than 150 decisions were issued by Italian higher courts in the decade 2009–2020, addressing a wide range of social media-related issues. These cases mostly focus on the exercise of freedom of expression online and the actual identification of its relevant boundaries (e.g. defamation and perpetration of other criminal offences, reviews of online statements made by politicians or judges, etc.). Throughout the analysis of these decisions, the careful exercise of adaptation of existing rules to different technology-mediated cases stands as a common methodological feature. The praiseworthy, evolutionary, hermeneutic effort carried out in Italian jurisprudence does not fail to consider developments in the European courts. However, the judicial dialogue referring to European case law on social media and its constitutional sources presents some room for improvement. For the moment, in fact, this seems to be quite limited to supporting the reasoning underlying national judicial decisions rather than proactively seeking authentic guidance on the assessment of social media cases.