Offensive video on Tik Tok is still defamation and not insult

The offensive video on Tik Tok always triggers aggravated defamation and not the less serious and decriminalised insult, even if the person to whom the insult is addressed is virtually present. The fact of being present live at the projection allows, in fact, only the possibility of inserting comments, a margin of manoeuvre that is not sufficient to ensure a direct relationship with the offending person nor an immediate cross-examination, and in appropriate forms that respect a substantial equality of arms.

The Court of Cassation (judgment 29458/2025) entrusts to a principle of law the conclusion that leads it to reject the argument of the appellant, convicted of aggravated defamation by a means of publicity other than the press, according to which the insult contained in a video published on Tik Tok was a "retort" to the recipient'sbullying against his seriously ill son, and therefore had to be considered as a reaction to an unjust act and was punishable, as provided for in Article 599 of the Criminal Code. But if it was to be punished, the punishment had to concern insulting behaviour aggravated by the presence of several people, now decriminalised, and not aggravated defamation, because the offended person was present at the screening of the video, albeit, of course, remotely. The Supreme Court disagrees.

The judges also recall that what makes the difference between insult and defamation is the presence, in the former case, of the person targeted, whereas in defamation 'the offended person remains extraneous to the offensive communication between several people and is not able to interject himself'. To identify the offence, however, it becomes a categorical imperative to delineate the concept of 'presence', in times when technology has made it possible to speak of physical presence, even when this is virtual. This is what happens, for example, in c all conferences or in audio or video conferences, where physical and remote presence are equated. The case of emails and chat shared is different, not only by the person insulted but also by others, if the victim does not perceive the messages in the immediate surroundings.

Therefore, the possibility of a right of reply with real-time cross-examination is crucial. In the case of sentences uttered in a video posted on social media, the fact that the offended person witnesses the live broadcast of the video is not sufficient to establish presence equivalent to physical presence.

The sentence states that the 'possibility of contextually inserting comments to the images and sentences pronounced in the video constitutes a limited instrument of interlocution that does not put offender and offended in a direct and equal relationship and therefore does not guarantee an immediate, real and effective contrast'. It should also be considered that, as is generally the case, videos remain present on social platforms for several days and are shared. It is, therefore, evident that it is impossible to be present and replicated.