With a recent judgment of September 21st 2020, the Court of Rome explained the boundary between legitimate criticism and defamation in case of unflattering reviews published online by users.
The case concerned the publication of many negative reviews published by patients of a health facility on the platform Google My Business. The facility had requested the immediate removal of the disparaging reviews but Google had only deleted some of them, keeping those considered to be a legitimate expression of the right to criticize. Some of the reviews unremoved by the service provider were of the following standard: “Outrageous”, “Doctors to avoid and managed by incompetents” “(…) one of their doctors who molests patients (…) they state to report everyone who writes the truth, it is at the least EMBARASSING”.
Since Google did not remove of the contents, the facility addressed the Court as a matter of urgency, asking for the instruct of an order to remove reviews deemed defamatory.
The Court, after reconstructing the regime of liability of the online services provider in light of the 70/2003 decree, confirmed the absence of an obligation to a preventive control of the content published by the users. Such a control, in fact, would be impossible given the enormous quantity of data input by the users and would turn into in an improper form of an objective responsibility of the service provider.
Nevertheless, following a report related to a potential illicit content of the published review, the service provider has the responsibility to act immediately and evaluate the reported content. This evaluation is left to the provider and has to be conducted following the criteria provided in the terms of use of the online platform. Therefore, the obligation to remove rises only if in the outcome of the control an evident and obvious unlawfulness of the content is found. On the contrary, the provider will have to remove only pursuant to a court order.
In case the user asks for the intervention of the Judge to verify the unlawfulness of the content, it has to be performed a balance between the right to reputation, even commercial, and the counterpart right to criticize, based on the freedom of expression.
Finally, with the judgement at hand, the Court of Rome explained that the right to criticize includes the possibility of a legitimate expression of open dissent or disfavor. Therefore, for the purpose of the balance, the discriminating element shall be found in the adherence of the review, even if argumentative, to a real event, as the review is seen as a solicitation to restore a conduct deemed proper. In such case, the right to criticize will prevail over the right to reputation as long as it will not translate in gratuitous rants or in the representation of false circumstances and at the condition that the tone used is pertinent to the topic in discussion and not defamatory.
That being said, the Court considered the comments “Outrageous” and “Doctors to avoid and managed by incompetent” as legitimate expression of the right to criticize: for as scathing they are, they were not found to be vulgar or gratuitously insulting, but reviews representative of an individual sensibility, referred to the perception of the conducts held by the staff of the facility and the related efficiency.
On the contrary, Google was ordered to remove the post “(…)one of their doctors who molests patients (…) they state to report everyone who writes the truth, it is at the least EMBARASSING”. This comment, as a matter of fact, is not a simple negative opinion but contains the formulation of a precise allegation, extremely serious both on an ethical and a juridical side. As the truth of such event had been firmly denied by the health facility and there was not the possibility to demonstrate the foundations of the allegations, the Court considered that the review could be censurable as it was severely prejudicial for the reputation of the facility.