Battista, Daniele; Uva, Gabriele --- "Navigating the Virtual Realm of Hate: Analysis of Policies Combating Online Hate Speech in the Italian-European Context" [2024] LawTechHum 4; (2024) 6(1) Law, Technology and Humans 48

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Navigating the Virtual Realm of Hate: Analysis of Policies Combating Online Hate Speech in the Italian-European Context

Daniele Battista

University of Salerno, Italy

Gabriele Uva

University of Sannio, Italy

Abstract

Keywords: Hate speech online; counter-measures; European regulatory framework; civil law remedies; social dynamics; Italian law.

1. Introduction

Hate speech is a form of expression that manifests in various social contexts, including political debates,^[1] artistic expressions,^[2] professional sports^[3] and workplace environments.^[4] This extreme form of communication presents a significant challenge in its understanding and management, especially in the context of rapidly developing digital technologies, with particular reference to social media platforms. The term in question refers to speeches or messages that spread hatred, discrimination, prejudice or violence against an individual or a group based on characteristics such as race, ethnicity, religion, gender, sexual orientation and gender identity.^[5] Among the pioneers of hate studies, a notable author is Matsuda,^[6] who developed a definition of hate studies focused primarily on the content of discourse. According to this definition, for a speech to fall into the category of hate studies, it must contain elements of racial discrimination (such as the assertion of racial inferiority), be persecutory, hateful and degrading, target historically oppressed groups or members of such groups, and stem from a clear intention on the communicator’s part to harm the target.^[7] In general terms, it is entirely evident that these speeches can have severe consequences for the victims and contribute to the marginalisation and exclusion of disadvantaged groups.^[8] Furthermore, although this field of study has been around for over two decades,^[9] many questions still remain.

The phenomenon is inherently complex and presents significant challenges in its understanding, especially considering the apparent simplicity of the term’s use in current discourse. Despite efforts, to date there is no universal and shared definition of hate speech. This means that when dealing with this concept, it is not automatic to have a clear understanding of its boundaries and distinctive characteristics. Its characterisation is a point of intellectual dispute among different worldviews, many of which are external to the Western universe and relatively unknown. Hate speech poses a threat to social cohesion and peaceful coexistence as it promotes discrimination and the marginalization of vulnerable groups. Its manifestations can be conveyed through various means of communication, including public discourse, mass media, and increasingly through social media platforms^[10]. This has made hate speech a particularly significant challenge in the digital age, as messages of hate can spread rapidly and reach a wide audience.^[11] Over the years, it has also taken on different meanings depending on the historical, political and geographical context, to the point of becoming something generic and ill-defined, often used merely as a slogan. Several studies have shown that identifying hate speech on social media is not a straightforward exercise^[12]. Those who spread hatred often use a range of subterfuges to mask their statements and make their positions appear acceptable. These subterfuges allow them to evade accountability and reach a wider audience, thus perpetuating the harmful effects of hate speech. For example, hatemongers may use irony, humour and satire to disguise a violent narrative.^[13]

The digital cauldron represents a fertile environment for the spread and amplification of hate, as it enables the rapid transmission of discriminatory and prejudicial messages to a wide audience. This phenomenon adapts to the framework of a multidimensional reality that develops concurrently both online and offline,^[14] emphasising the viral capacity of social media, effortlessly migrating from one platform to another.^[15] In this regard, social media platforms play a pivotal role in regulating online hate speech, owing to their extraordinary reach. However, the responsibility for regulating hate speech cannot be attributed solely to them: society as a whole has a crucial role in promoting a culture of respect, tolerance and inclusion. It is essential for citizens to be aware of the importance of civil and respectful dialogue, to condemn hate speech actively and to engage in promoting values of equality and diversity. Furthermore, institutions – especially those with legislative power – have the task of producing effective legislative texts to combat and remedy what jeopardises civil coexistence by violating fundamental values and rules of community living. From a legal perspective, the field of inquiry is delimited to the European Union and the application of private remedies in Italy. The analysis cannot ignore the framework outlined by the fundamental texts of the Union and some judgments of the European Court of Human Rights. In Italy, despite the absence of specific legislation, resorting to the tools of the Civil Code partially satisfies reparative and protective needs through the application of Article 2059 of the Civil Code in line with the broad interpretative and normative scope of Article 2 of the Constitution. On their part, platforms can act through contractual termination and the subsequent closure of social media pages that disseminate hate messages, as we will see. In summary, the sociological analysis of these phenomena and the search for legal solutions represent a concrete and current challenge that requires ongoing dialogue among experts in the social sciences, aimed at developing effective strategies to address the harmful consequences for democracy while safeguarding fundamental values. In essence, the regulation of hate speech is a shared responsibility among states, social platforms and citizens. Through synergistic collaboration, by balancing values and principles, it will be possible to construct an effective global response to address hate speech and create an inclusive and respectful environment both online and offline.

2. Hate Spreading Online: An Emerging Phenomenon in Social Dynamics

New technologies and social media have radically transformed human communication, relational processes and social dynamics, shifting us from a model of vertical narration to a horizontal one. It is worth noting that we have long been living in what is referred to as the Platform Society,^[16] where the internet and specialised social networks for discussion play a prominent role in organising decision-making processes and activating democratic practices in various forms. This state of affairs represents a significant change in how information is produced, distributed and consumed. Communication is no longer unidirectional, but occurs interactively, allowing active engagement of individuals in content production and sharing. Digital platforms such as social media serve as intermediaries that facilitate connections between people, enabling them to share ideas, opinions and information quickly and efficiently.

The internet landscape has undergone a profound transformation, rendering obsolete the linear model of one-way content distribution where users were passive recipients of data from a limited number of selected providers. Instead, the contemporary internet is characterized by a ‘many-to-many’, rather than a ‘one-to-many’ paradigm,^[17] where the actions of ordinary users play a significant role in shaping and guiding the platform. This evolution marks a significant departure from the internet of the 1990s and 2000s, known as the Cyberspace era. A key element of this transformation is the role of the user within social media. Users are no longer simple passive content recipients, but actively engaged actors in collaborative content creation and digital interaction.^[18] On social platforms, users connect with the goal of sharing, evaluating, remixing and participating in emerging trends. These activities can be seen as genealogical archiving processes, encompassing content sharing, establishing interpersonal connections, evaluating cultural aspects and actively producing digital content. In summary, the internet landscape is characterised by a significant democratisation of content production and distribution, with active user participation that has radically redefined how we conceive and use the internet. This transformation has profound implications for communication, culture and society in the digital age.

A crucial aspect of this transformation is the centrality of the dynamic and unpredictable understanding that develops within the interactive environment. Digital platforms highlight mechanisms and consequences that emerge in the digital political context, offering a unique window to explore and understand decision-making processes and democratic dynamics. The complete immersion in the society of connectivity has significantly facilitated both old and new forms of abuse.^[19] Moreover, it is obvious that hate speech has diversified entirely as it travels across social platforms, spreading at an extremely rapid pace that can have a significant impact on individual behaviour, transcending the spatial and temporal boundaries within which it originated. On the other hand, individuals can now establish virtual social connections that surpass geographical and temporal constraints, allowing them to interact and exchange information with others instantly and without geographical restrictions, ushering in a new mode of participation within cyberspace.^[20] Through the use of social media, those who spread hate and aggression can find refuge in anonymity, enabling them to freely express their negative ideas without being identified. Furthermore, this virtual platform offers them the opportunity to connect with individuals who share a similar mindset, thereby creating a kind of community that supports and reinforces their aggressive tendencies in the name of proselytism. According to the Anti-Defamation League’s report Online Hate and Harassment: The American Experience 2023,^[21] the growing visibility of hate speech in cyberspace is a significant concern. The report highlights how, starting from 2018, there has been an uncontrollable escalation of such speech; these findings can be attributed to the connection between the online and offline environments, indicating that messages spread on social media are inherently linked to the behaviours that society has experienced up to this point in traditional media.^[22] In this regard, a fundamental consideration comes to the fore since this operation constantly takes place within a vast unified environment: the digital context.

The synergistic interaction, which some scholars identify as the ‘dual screen’, represents an event that goes beyond mere information sharing, evolving into a complex process of data and knowledge exchange among multiple and diversified actors.^[23] This practice is characterised by the simultaneous consumption of, and active participation in, multiple sources of information, spanning different devices and digital platforms. Such interconnection of information and interactions represents an advanced form of engagement in the contemporary media ecosystem. Another aspect to consider in the complicated and controversial phenomenon at hand is that social media particularly fosters hate crimes among younger audiences.^[24] In particular, Generation Z (those born from 1995 onwards) has had access to the internet from birth, and their primary socialization medium revolves around the internet. Instagram, WhatsApp, Snapchat and TikTok are part of the daily life of digital natives. In this regard, digital platforms constantly strive to implement measures to counter the spread of undesirable discourse. In response to the growing proliferation and visibility of harmful and abusive comments, videos and reactions, these platforms are compelled to dedicate significant efforts to monitor and prevent such phenomena on a daily basis.^[25] Of course, it remains challenging to put a stop to the issue because, once it goes viral, a hate message could trigger an unstoppable multiplier effect that intensifies hate speech and discriminatory stereotypes.^[26] This is a butterfly effect scenario, which finds full application in the context of hate speech on social media. According to this principle, even a small action or insignificant event can trigger a series of unforeseen and far-reaching consequences. In the context of hate speech on social media, this means that even a single offensive comment or an inflammatory post can set off a chain of events that amplifies the spread of harmful content. For example, a discriminatory comment could attract the attention of other users, prompting them to share, comment on or replicate the offensive content, thus triggering a chain reaction that can lead to the virality of hate speech and widespread incitement to hatred. Moreover, this phenomenon underscores the importance of careful moderation and timely prevention of harmful content on social media to avoid the dissemination and escalation of hate speech in the digital sphere. In conclusion, despite the absence, to date, of a unified definition of hate speech, this article first aims to provide a general idea of the context and regulation.

Online hate speech is a complex and multifaceted issue that requires an interdisciplinary approach to fully understand its impacts on contemporary society. From a sociological perspective, it can influence the perception of reality and fuel the polarisation of opinions, creating divisions and conflicts within virtual and real communities. These phenomena can also contribute to the isolation of individuals in an ‘information bubble’, limiting the diversity of information sources to which they are exposed.^[27] On the other hand, delineating the boundaries of hate speech becomes more complicated when the exploration focuses on the internet, with its blurred boundaries. The growing concern revolves around the evolution of online spaces that transform into hostile and unwelcoming environments, compromising free expression and public discourse within the current media ecosystem.^[28] This phenomenon represents a particularly challenging issue for contemporary democracies as it threatens the functioning of these political systems.^[29] The transformation of these spaces into environments characterised by aggression, hatred and discrimination has negative effects on democratic participation, diversity of opinions and the construction of a healthy public sphere. This situation is often described as an environmental threat, a poison that accumulates gradually, word by word, undermining the social fabric and making it increasingly difficult for well-intentioned individuals to contribute to the maintenance of this fundamental common good. The hostile and inhospitable nature of online spaces can create an environment where free expression is suppressed or severely limited. Individuals may feel intimidated or concerned about expressing their opinions, fearing retaliation, verbal abuse or discrimination. This can lead to a reduction in the diversity of voices and perspectives represented online, thus limiting public discourse and the possibility of reaching democratic consensus. Moreover, this negative transformation of online spaces can affect offline social interaction, fuelling tensions and divisions in society. The spread of hate speech and harmful content can contribute to the polarisation of opinions, accentuating differences and creating intergroup tensions. This undermines social cohesion and the sense of common belonging, both of which are essential for the functioning of democracies.

To effectively address this challenge, however, it is increasingly necessary to adopt multidimensional approaches that involve both digital platforms and users. Platforms must take responsibility for monitoring and moderating content, implementing rigorous policies to counter hate speech and abusive behaviour. At the same time, users must be aware of their role in maintaining a healthy and inclusive online environment. This implies active engagement in countering verbal attacks and online hatred through constructive responses, reporting inappropriate content and promoting respectful and informed dialogue.

3. Framing the Phenomenon in the Italian and EU Legal System of Sources

Despite the absence of a generally recognised and shared definition, it can reasonably be assumed that the term ‘hate speech’ is commonly understood to refer to expressions and statements with discriminatory content capable of conveying messages of hatred and intolerance towards specific individuals or groups, thus harming the honour and dignity of the person or group targeted and effectively violating the common denominator of civilised living: the respect for fundamental human rights. In reality, the expression ‘hate speech’ belongs to a category developed in the 1970s by US jurisprudence to indicate a genre of words and speeches teleologically aimed at expressing hatred and intolerance towards third parties, as no other function can be identified, risking provoking violent reactions against or from that particular group.^[30] However, there is still no generally accepted definition. The absence of one, according to recent doctrine, may be justified by the breadth and progressivity of the phenomenon and the fact that it eludes precise delineations due to the complexity and vastness of communicative registers, which vary depending on territorial sensitivities.^[31] Nevertheless, various definitions or delineations emerge or can be deduced from the fundamental texts of European institutions. In particular, Article 19 of the Treaty on the Functioning of the European Union lists non-discrimination as one of the fundamental principles of the European Union. Article 21 of the Charter of Fundamental Rights of the European Union similarly states that ‘any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited’. Furthermore, Articles 10 and 14 of the European Convention on Human Rights establish, respectively, that the exercise of the right to freedom of expression, ‘since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary’; and that ‘the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status’. However, the European Court of Human Rights has recently ruled on this issue, urging the interpreter not to abuse the right in the application of Article 10 mentioned above, placing Article 17 of the ECHR as an interpretive limit. Article 17 states that no provision of this Convention may be interpreted as implying for any state, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention. The judges have ruled that statements aimed at inciting hatred, discrimination and violence are incompatible with the values of tolerance, social peace and non-discrimination guaranteed by the Convention. Therefore, in accordance with Article 17, they are not entitled to the protection provided for in the first paragraph of Article 10.^[32] For the purposes of this research, and to define the framework of reference in terms of European sources, it is useful to refer to both the Human Rights Guidelines for Internet Users issued in 2014 by the Council of Europe’s Committee of Ministers, which define hate speech as all forms of expression that contribute to propagating, stimulating, promoting or justifying racial hatred, xenophobia, antisemitism or other forms of hatred based on intolerance; and to the definition provided by the European Commission against Racism and Intolerance (ECRI), according to which hate speech is considered to be any expression whose ultimate aim is to:

foment, promote or encourage in any form the denigration, hatred or defamation of a person or a group, as well as the fact of subjecting a person or a group to harassment, insults, negative stereotypes, stigmatization or threats, and the justification of all these forms of hate speech mentioned above, based on race, skin color, ancestry, national or ethnic origin, age, disability, language, religion or beliefs, sex, gender, gender identity, sexual orientation, and other personal characteristics or status.

Finally, it is worth noting the Code of Conduct on Countering Illegal Hate Speech, adopted on 31 May 2016 by the European Commission and endorsed by major internet companies (Facebook, Google, Twitter (now X), Instagram, Microsoft), which committed to promptly removing hate speech content spread on their platforms following notice or reports. On the jurisprudential front, one cannot ignore the decisions of the European Court of Human Rights on this matter. The Court has deemed it necessary, for example, to sanction and prevent the dissemination of expressions that incite, promote or justify hatred based on intolerance, provided that such restrictions are proportionate to the intended purpose.^[33] It has also recognised that laws aimed at repressing and combating hate speech inspired by racism and xenophobia represent a legitimate limitation of freedom of expression in favour of the necessary protection of individuals’ reputations and fundamental freedoms in a democratic society.^[34]

4. The Impact of the Phenomenon on Subjective Legal Situations and Civil Law Remedies

However, regardless of the definitional aspect and the framework of sources in the old continent, what matters here is the impact of the phenomenon under discussion on individual legal situations and the civil remedies available for countering hate speech in the Italian legal system. Before addressing the core of the highlighted issue, a preliminary point is necessary. While the freedom of expression provided for in Article 21 of the Italian Constitution enjoys broad constitutional protection,^[35] not all forms of expression are legally protected, including hate speech.^[36] This freedom should not be understood as an absolute legal status, and therefore not every expression of thought should necessarily be considered lawful without first undergoing a judgement of merit that takes into account a limit not to be exceeded: public decency.^[37] It has been observed, in this regard, that there is no proposal for legal restrictions on hate speech that does not start from the consideration that freedom of speech does not prevent all public interference with the expression of thought, as there are many circumstances in which it conflicts with other needs, goods and values that are equally worthy of protection.^[38] Among these, one cannot fail to mention the dignity of the person, which always presupposes the full and free development of the individual,^[39] as dignity itself.^[40] It is known, moreover, that starting from the Cassation ruling no. 5259/1984,^[41] a reasonable balance must always be attempted between the rights to honour and reputation, and the freedom of opinion and expression through a balancing of constitutional values under Articles 2, 3 and 21 of the Italian Constitution. It is evident that, with the advent of the Web 2.0 society and the increase in the diffusion and use of social networks, hate speech has rapidly spread and unfortunately characterised the public and political debate in recent years. In today’s society, which is often referred to as the ‘platform society,’^[42] technological innovation has profoundly changed how information is produced, distributed and used. This is a structural change that affects how liberal democracy and the market economy have evolved together.^[43] On the other hand, some argue that it would be a mistake to believe the advent of the internet has caused the phenomenon, and that, by intervening in it, the problem can be prevented or resolved. The internet is just a medium that emphasises its harmful effects, but it is not the cause.^[44]

In Italy, there is no specific legislation regarding hate speech, and the need to regulate this matter emerged following the publication of the report by the Italian parliamentary commission on hatred, intolerance, xenophobia and racism, ‘Jo Cox’, established in 2016. The report highlighted concerning data on online hate and widespread misinformation on various topics, particularly immigration and the LGBTIQ+ community.^[45] Regarding remedies and the Italian legal system’s response, it is essential to emphasise that criminal law tools are generally used. In this regard, we can mention Law No. 205 of 25 June 1993, known as the Mancino Law, as well as Law No. 85 of 24 February 2006, and more general offences of defamation and slander that, when committed online, are aggravated by this circumstance.^[46] Nevertheless, there is also recourse to private law instruments to combat online hate speech, particularly concerning non-pecuniary damages under Article 2059 of the Civil Code. Non-pecuniary damages, driven by the strength of constitutional values, have gained significant priority in providing enhanced protection for individuals.^[47] Some argue that the violation of dignity and the constraint of living in a threatening environment are prejudices deserving attention under civil liability instruments.^[48] Attentive legal scholars have noted that, in Europe, efforts to combat hate speech involve both criminal law measures that punish those responsible for such actions and the criminalisation of denialism. In recent years, there has also been a trend, encouraged by EU sources,^[49] to employ remedies typical of private law.^[50]

5. Combating Hate Speech Through Private Law Tools: Between Compensation for Damages and Social Media Platform Withdrawal

Faced with the proliferation of hate-inciting speeches, legal experts are increasingly questioning the possibility of combating this phenomenon, which is undoubtedly amplified by the massive and invasive spread of social networks. Although seemingly of lesser importance, civil law remedies appear to offer a contribution to defining tools to counter hate manifestations.^[51] It has been correctly observed that in the context in which the internet permeates all aspects of life, the social sciences are at a crossroads: either limiting themselves to describing the disruptive effects of the phenomenon or attempting to understand the essence of these phenomena without limiting themselves to a mere exercise in analogical reclassification.^[52] Authoritative doctrine^[53] has emphasised how the infinite replicability and easy dissemination of defamatory content require legal practitioners to constantly redefine protection mechanisms. This is because honour and reputation, while generally recognised by the legal system, need to be assessed as such whenever there is a violation, and it is precisely in this context that the problem of countering the infringement of honour and reputation directed at specific individuals or groups proliferates, with particular reference to hate speech.^[54] It is considered reasonable, moreover, to reflect on the assertion that the choice of sanctions and remedial measures more generally, not only legislatively, represents a decisive moment in assessing the system’s response efficiency to the spread of online hatred on one hand, and for declaring a certain selection of values underlying common living on the other hand.^[55] It is no coincidence that the protected good in experiencing the aforementioned remedies is the dignity of individuals,^[56] aimed at reaffirming the axiological centrality of equality under Article 3 of the Constitution, to which the satisfactory claim arising from the discipline of civil liability can be anchored.

The reaction of the legal system presupposes the existence of a need for protection activated by an obstructive event; consequently, it must produce its effects by impacting one or more conflicting legal positions.^[57] Within the framework of civil law tools, we operate within the boundaries outlined by the category of non-pecuniary damage and, in light of a constitutionally oriented interpretation, the pre-eminence of Article 2 of the Constitution as a general clause for the protection of the individual.^[58] Therefore, anyone who becomes a victim of online hate can demand compensation for damage if the expressions used harm the dignity, reputation and honour of the person or group to which they belong.^[59] In this regard, as recently stated, in the context of combating hate speech, ‘the recourse to non-pecuniary damage compensation under Article 2059 of the Civil Code is evident, encompassing the harm resulting from the violation of non-economic personal rights’.^[60] In terms of practical application, in a 2018 dispute^[61] concerning a request for damages for seriously offensive and insulting statements against individuals of Roma ethnicity and African migrant origin, the Milan Tribunal accepted the request, establishing that discriminatory behaviour, by violating the protection and exercise of any action aimed at protecting the right to equal dignity and equal access to fundamental rights, entitles the victim to compensation for damage. It also highlighted that:

It must be asserted that the statements condemned by the plaintiffs and better summarized in the provision of the measure effectively constitute harassing conduct under Article 2, paragraph 3, Legislative Decree 215/2003, as they create a hostile atmosphere aimed at spreading hatred and excluding the recipients from the social fabric; a degrading atmosphere capable of offensively and demeaningly affecting the dignity of the social groups involved, in violation of Article 3 of the Constitution, and finally a humiliating atmosphere with reference to the gratuitous attribution of lower qualities based on ethnicity and nationality.^[62]

Despite the extensive doctrinal debate on the function of non-pecuniary damage compensation,^[63] sometimes considered compensatory, sometimes satisfactory and at other times punitive for compensation purposes, the offence must genuinely infringe upon a legally protected interest in the context of a balance between recognised solidarity with the victim and the tolerance extended to fellow citizens, based on the social consciousness of the time when the illicit conduct takes place.^[64] Such a balance is often necessary when, as in the case of hate speech, the agent violates a constitutionally protected value but does so in the exercise, clearly exceeding limits, of a constitutionally protected freedom. However, as emerging from Italian jurisprudence in recent years and the practices of social media platforms in specific situations, among the remedial aspects of the damages arising from the phenomenon under study there is also the contractual termination carried out by social networks for violation of the general terms and conditions of the contract – as a precautionary measure – and the subsequent closure of the profile of the user who engaged in illicit conduct. For completeness of the picture but without claims of exhaustiveness, it is necessary to refer to the legal dispute between Facebook and Forza Nuova, and the reasons for the decision of the Rome Tribunal.^[65] With an order dated 23 February 2020, the aforementioned court rejected the petition filed under Article 700 of the Code of Civil Procedure by Forza Nuova after the social network had removed both the official page and the profiles of its administrators. The judge emphasized that the extreme right-wing political organization mentioned earlier did not limit itself to disseminating unacceptable expressions of incitement to hatred and violence but had engaged in actual punitive expeditions against ethnic minorities targeted by its hate speech. Furthermore, it was stated – and this approach is reasonable – that Facebook could not only delete the accounts for clear violation of the general terms and conditions of the contract, but even had a legal duty to do so under the rules of national and supranational law.^[66] The conclusions drawn by the judge are evidently the result of a balance between constitutionally relevant rights that determined the prevalence of the value of human dignity and substantive equality over freedom of expression.^[67] It should also be added that, due to Facebook’s terms of use prohibiting content that could be interpreted as hate speech in accordance with Code of Conduct signed with the European Commission, the social network enjoys the right to terminate the contract with users in the case in point^[68] and therefore in similar cases detrimental to those values that prevail in an axiological balancing act. For completeness of information, in the analogous dispute Casa Pound vs. Facebook,^[69] where the judge imposed on the social platform to reactivate the account, it was argued that, on the one hand, the platform has an obligation to host all kinds of political opinions expressed by representatives of political forces and, on the other hand, since it occupies a special position in relation to users, the said social network has a general obligation to comply with constitutional principles until it is proven – through a full-fledged adjudication, as the first instance judgment is not sufficient – that the user has violated them.

6. Conclusions

It is evident that the remedial system itself cannot effectively counter the phenomenon without a massive awareness campaign and, more broadly, a widespread cultural investment. Contributing to the complexity of the situation is the absence of specific legislation aimed at defining the phenomenon and providing citizens and users with robust and definitive protections, given that interests and values of primary and constitutional importance are at stake. Nevertheless, the incomplete resolution capability of private-law tools in the face of the pervasiveness and harmful nature of certain online behaviours such as hate speech, as well as those of a criminal nature, should prompt the Italian and European legislatures to intervene with regulatory measures capable of creating a barrier to hatred in a preventive, rather than reparative and compensatory, manner. The need for digital intermediaries to moderate the content on the internet created by users is increasingly being recognised. It is considered necessary to increase the responsibility of platforms so they implement, through efficient technological remedies, limitations on the creation and dissemination of hate content, as well as whenever they have failed to monitor or identify content harmful to an individual or group. In this regard, a regulation proposal has been put forward by the European Parliament and the Council on the Digital Services Act, which includes strengthening platform obligations, especially regarding the removal of illicit content and subsequent liability for inaction. In the summer of 2022, the EU Parliament approved the Digital Services Package, aiming to introduce an adequate set of procedures to counter illegal online content, imposing on computer platforms diligent behaviour and an increased responsibility for the control and moderation of content disseminated online while respecting fundamental rights.^[70] The underlying need that emerges is to find a point of balance between freedom of expression on the so-called ‘virtual square’ and human dignity – a kind of digital sustainability. In any case, the use of compensation for damages appears indispensable as a subsequent tool for protection and counteraction against hatred, regardless of the form of its expression.

Acknowledgments

Daniele Battista, PhD, Post-Doctoral Research Fellow in Sociology of Communicative and Cultural Processes at the University of Salerno, contributed to section 2. Gabriele Uva, a PhD student in Civil Law at the University of Sannio, contributed to sections 3, 4 and 5. The abstract, section 1, and section 6 are jointly authored.

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Legal citations

CEDU. Belkacem v. Belgio (34367/14), 27 giugno 2017.

CEDU. Erbakan v. Turkey (59405/00), 6 luglio 2006.

CEDU. II S., 15615/07, Feret v. Belgium, 10 dicembre 2009.

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^[1] Belluati, “Hate or Hateful? L’uso del linguaggio d’offesa nelle discussioni politiche,” 373–92. Fronzi, “Gli Hate Speech dal punto di vista sociolinguistico e filosofico,” 77–158; Salvatore, “I discorsi di odio come costruzione di senso. Note per una politica di promozione delle competenze semiopoietiche = Hate speech as a construction of meaning. Notes for a Policy of Promoting Semio-poietic Skills,” 159–202.

^[2] Patti, “Implicazioni etiche dell’analisi di contenuti, emozioni e interazioni nei social media,” 579–600; Jääskeläinen, “Countering Hate Speech Through Arts and Arts Education,” 344–57.

^[3] Bobba, “Il Barometro dell’Odio nello Sport,” 313–18; Kearns, “A Scoping Review of Research on Online Hate and Sport,” 402–30.

^[4] Brink, “Millian Principles, Freedom of Expression, and Hate Speech,” 119–57; Shiell, Campus Hate Speech on Trial.

^[5] Cohen-Almagor, “Fighting Hate and Bigotry on the Internet,” 89–114; Van Dijck, “Governing Digital Societies.”

^[6] Matsuda, “Public Response to Racist Speech.”

^[7] Matsuda, “Public Response to Racist Speech,” 2320.

^[8] Moran, “Talking About Hate Speech,” 2320–21.

^[9] Duffy, “Web of Hate,” 29–312.

^[10] Galeotti, “Hate Speech,” 224.

^[11] Binny, “Spread of Hate Speech in Online Social Media,” 173–82.

^[12] Miranda, “I Love to Hate!,” 137–45.

^[13] Schwarzenegger, “Can it Be Hate if It is Fun?,” 473–79; Battista, “Knock, Knock!,” 100.

^[14] Boccia Artieri, Stati di connessione. Pubblici, cittadini e consumatori nella (Social) Network Society.

^[15] López-Paredes, “Memética: la reinvención de las narrativas en el mundo digital, protestas sociales y discursos de odio,” 25–37.

^[16] Van Dijck, The Platform Society.

^[17] O’Reilly, “Web 2.0: Compact Definition?”

^[18] Gehl, “The Archive and the Processor,” 1228–44.

^[19] Gagliardone, “Defining Online Hate and Its ‘Public Lives’, ” 3060–87.

^[20] Vesnic-Alujevic, “Political Participation and Web 2.0 in Europe,” 466–70.

^[21] Anti-Defamation League, Online Hate and Harassment: The American Experience 2023.

^[22] Olmos, “Jóvenes, redes sociales virtuales y nuevas lógicas defuncionamiento del racismo: etnografia virtual sobre representaciones y discursos de alteridad eidentidad.”

^[23] Giglietto, “Second Screen and Participation,” 260–77.

^[24] Valerio, “Hate Messages Toward the LGTBIQ+ Community in Instagram Profiles of the Spanish Press,” 364–88.

^[25] Miro-Llinares, “Cyber Hate Speech on Twitter”, 406–15.

^[26] Cabo-Isasi, Hate Speech in Social Media.

^[27] Goel, “Hatemongers Ride on Echo Chambers to Escalate Hate Speech Diffusion.”

^[28] Campagnoli, “Dalle fake news all'hate speech online,” 1–153.

^[29] Tsesis, “Dignity and Speech,” 497; Heinze, Hate Speech and Democracy Citizenship.

^[30] Pino, “Discorso razzista e libertà di manifestazione del pensiero,” 287–305.

^[31] Spatuzzi, “Hate speech e tutela della persona,” 888.

^[32] CEDU, Belkacem v. Belgio (34367/14), 27 giugno 2017.

^[33] CEDU, Erbakan v. Turkey (59405/00), 6 luglio 2006.

^[34] CEDU, II S., 15615/07, Feret v. Belgium, 10 dicembre 2009.

^[35] For an in-depth study, see Pollicino, “La prospettiva costituzionale sulla libertà di espressione nell’era di internet”; Lugato, “Il ‘discorso di odio’: le coordinate giuridiche del ragionamento internazionalistico.”

^[36] Casarosa, “L’approccio normativo europeo verso il discorso dell’odio online: l’equilibrio fra un sistema di “enforcement” efficiente ed efficace e la tutela della libertà di espressione,” 1.

^[37] Ciancimino, La libertà di espressione nel mondo digitale: alcune coordinate civilistiche in tema di contenuti controversi sui social network, 360; Spatuzzi, “Hate speech e tutela della persona.”

^[38] Gometz, “L’odio proibito,” 18.

^[39] Perlingieri, Il diritto civile nella legalità costituzionale, 166.

^[40] Lonardo, Il valore della dignità della persona nell’ordinamento italiano, 790.

^[41] Cassazione civile sez. I, 18/10/1984, n. 5259.

^[42] Stanzione, I “poteri privati” delle piattaforme e le nuove frontiere della privacy, 1; in the author's opinion, this definition is the one that best captures the centrality of the power assumed by platforms, in a sphere that is no longer limited to the market, but more broadly encompasses civil, social and political rights.

^[43] Pitruzzella, Parole e potere. Libertà d’espressione, hate speech e fake news, 57.

^[44] G. Alpa, “Autonomia privata, diritti fondamentali e ‘linguaggio dell’odio’,” 48.

^[45] https://www.camera.it/application/xmanager/projects/leg17/attachments/shadow_primapagina/file_pdfs/000/007/099/Jo_Cox_Piramide_odio.pdf.

^[46] Cass. pen., 1 febbraio 2017, n. 4873; the aggravating circumstance arises from the fact that the dissemination of a defamatory or insulting message spread via a social network noticeboard is potentially capable of reaching an indefinite, at least appreciable, number of users.

^[47] Patti, Responsabilità civile – danno non patrimoniale, 1.

^[48] Viglione, “Riflessioni sui rimedi civilistici all’hate speech,” 785.

^[49] Direttiva 2000/43/CE on equal treatment.

^[50] Viglione, “Riflessioni sui rimedi civilistici all’hate speech,” 780–81.

^[51] Viglione, “Riflessioni sui rimedi civilistici all’hate speech,” 775.

^[52] Sica-Giannone Codiglione, “Information ‘Truth’ and Digital Solidarity.”

^[53] Giannone Codiglione, “Internet e tutele di diritto civile.”

^[54] Giannone Codiglione, “Internet e tutele di diritto civile,” 80–81.

^[55] Spatuzzi, “Hate speech e tutela della persona,” 893.

^[56] Corte Cost., 12 luglio 2021, n. 150; in a passage of the reasons in law, the judges state: “If it is true, in fact, that freedom of expression – in particular sub specie of the right to report news and criticism exercised by journalists – constitutes a cornerstone of any democratic system, it is no less true that the right to individual reputation is also an inviolable right, closely linked to the very dignity of the person.”

^[57] Giannone Codiglione, “Internet e tutele di diritto civile,” 19–20.

^[58] Perlingieri, “L’onnipresente art. 2059 c.c. e la “tipicità” del danno alla persona,” 523.

^[59] Spatuzzi, “Hate speech e tutela della persona. Tra incertezza del paradigma e declinabilità dei rimedi,” 896.

^[60] Mendola, “Lo statuto giuridico degli illeciti online tra hate speech e fake news,” 1419.

^[61] In the present case, the dispute arose from a radio interview, in which a mayor made offensive statements about members of minorities on the one hand, and statements opposing the fact that asylum seekers could occupy dwellings in the territory of his municipality on the other.

^[62] Tribunale di Milano, ord. 6 giugno 2018, RG. 69269/2016.

^[63] De Lucia, “L' ‘impatto’ dei punitive damages sul sistema italiano di responsabilità civile”, 151; Astone, “Danni non patrimoniali. Art. 2059, 242”; D’Adda, “Responsabilità civile,” 115; Franzoni, “Il danno risarcibile”, 721; Perlingieri, “La responsabilità civile tra indennizzo e risarcimento,” 251.

^[64] Baratella, Le pene private, 108.

^[65] Tribunale di Roma, ord. 64894/2019, 20 febbraio 2020.

^[66] Mazzolai, “Hate speech e comportamenti d’odio in rete,” 581.

^[67] Vigorito, “Piattaforme digitali e ‘political speech’,” 5–6.

^[68] Mendola, “Lo statuto giuridico degli illeciti online tra hate speech e fake news”, 1409; once again, the author observes, the right to free expression of thought meets the limit of respect for the fundamental rights of others, first and foremost the right to the protection of human dignity, as well as the prohibition of all discrimination.

^[69] Tribunale di Roma, ord. 12 dicembre 2019.

^[70] Mendola, “Lo statuto giuridico degli illeciti online tra hate speech e fake news,” 1425.