Likes on Facebook Posts: How They Are Viewed By the Criminal Courts

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Can liking content on social networks be regarded as an indication of a crime as part of interim measures in criminal proceedings? Apparently, the answer of the Italian Supreme Court of Cassation is yes. With its recent decision No. 4534/2022, the Supreme Court rejected the petition filed against an interim measure issued by the judge in the preliminary investigations in the context of a criminal proceeding for incitement of racial hatred.

Specifically, the person under investigation was shown to believe in the ideals of a Nazi movement group. Among the conduct that led to this conclusion (including the defendant meeting in person with members of said group) was the defendant’s online “liking” of posts promoting the movement’s ideology that were discriminatory against Jews and engaged in Holocaust denial. Although he himself had not posted the content on social media, he had liked it via accounts associated with him.

Pursuant to Section 604 bis of the Italian Criminal Code (“CC”), punishment is due to anyone “who propagates ideas based on racial or ethnic superiority or hatred, or incites to commit or commits acts of discrimination on the basis of race, ethnicity, nationality, or religion” and “whoever, in any way, incites to commit or commits violence or acts of provocation to violence on the basis of race, ethnicity, nationality, or religion” and “if the propaganda or incitement is committed in such a way that there is a real danger of dissemination and is based in whole or in part on the denial, gross trivialization, or condoning of the Holocaust or crimes of genocide […].”

The defense appealed the decision…

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