Laughing face can be defamatory in eyes of Italian court

Italy’s supreme court has weighed in on a dispute that began after a Facebook chat participant used laughing faces to make fun of another person’s poor eyesight.

The defendant had rounded off his comments 'with numerous emoticons symbolising laughter, mocking him'. Illustration: The Times

A laughing face emoji can be construed as defamation if it comes at the end of an online post making fun of a person’s physical disability, Italy’s supreme court has ruled.

The court weighed in on a dispute that began on Facebook and concerned traffic problems in the northern town of Luino. The disagreement culminated with a user making fun of the poor eyesight of another participant in the chat, punctuating his observations with a series of laughing faces.

The court said the defendant had referred openly to the defective vision of the plaintiff. He had rounded off his comments “with numerous emoticons symbolising laughter, mocking him”.

The author of the insulting post was convicted of defamation by a court in Varese, fined €800 ($1220) and ordered to pay €2000 in compensation to his victim, a local businessman, who brought the case. The verdict was subsequently overturned by an appeal court in Milan, which ruled that the online clash amounted to the use of insulting language but did not constitute a crime.

Italy’s top judges have now ruled that the phrases, and the emojis, did amount to defamation and have sent the case back to the appeal court for the cost of the offence to be reassessed.

During the earlier appeal hearing, lawyers for the defendant argued that “a sight deficit doesn’t diminish the value of a person” and that their client’s behaviour had simply “shown himself in a bad light”.

After discussing the legal distinction between an insult and defamation, which involves damaging a person’s reputation in front of others, the supreme court decided that the Facebook exchange was indeed defamatory.

“The novelty of this sentence is that the emoticon is recognised as an instrument of communication that strengthens the message of the text,” Vera Cuzzocrea, a Rome psychologist, said.

Francesco Micozzi, a lawyer and professor at Perugia University, said the use of the emoji in this case underlined the author’s intended mockery.

“The difficulty in judging defamation is that there is no mathematical precision to it and in future [they] could be deemed inoffensive,” he said. “It’s always important to consider the context.”

Emojis are becoming increasingly subject to legal interpretation. A US study found they had been mentioned in court some 50 times a year between 2004 and 2019.

A French man was convicted of making threats for sending an image of a pistol to his girlfriend and an Israeli couple were considered to have undertaken to rent a flat after they sent affirmative emoticons to its owner.

The Times