Social media have revolutionized gossip, but not the legal rules. The right to report news maintains precise limits: objective truth, public interest, and formal correctness remain mandatory criteria for legitimacy

Edited by Ilaria Gargiulo, Partner and Camilla Pasino, AMTF Lawyers

Over the years, the boundary between the right to report news and the protection of the individual has become increasingly blurred, aided - just to cite a recent case - by the return of controversial media figures such as Fabrizio Corona and his investigations of influencers, celebrities and showbiz personalities - from the Ferragnez to Vanna Marchi's daughter - often relaunched even by social pages that are not newspapers.

The right to report in the digital age: new challenges
Media exposure of the private lives of public figures has taken on increasingly aggressive and spectacular forms, often driven by clickbait and virality logics rather than genuine informational intent. This raises profound questions not so much about the individual case, but about the role that law - and more generally, communication ethics - should assume in a context where anyone can turn into a "reporter" without professional mediation. In this scenario, the risk is that of a progressive erosion of guarantees to protect personal dignity, sacrificed on the altar of entertainment or visibility. It is therefore necessary to reflect on the boundary between the right to inform and the power to expose, between freedom of expression and duty of responsibility, especially when digital platforms amplify content that - while not formally violating norms - ends up profoundly altering the public perception of the very concept of news.

In this fragmented and hyper-connected landscape, it becomes crucial to question who can be said to be entitled to "do information" and how far one can go in reporting on the private lives of others, especially when the goal is not a public interest service, but spectacularization for its own sake.

Normative framework of the right to report
We will then try to analyze the delicate balance between freedom of information and the right to report news, in their broadest declination of gossip and pink news, and the rights to privacy and image, particularly those of famous people, to whom exceptions related to notoriety most often apply. The article will then turn to the analysis of relevant case law cases, from which it will particularly emerge when the right to chronicle prevails and when the right to privacy of the individual being narrated prevails. Finally, brief hints will be offered on the subject of quantification of reputational and/or defamation damages.

Constitutional foundations of the right to report
Gossip, understood as the public dissemination of news about the private lives of well-known personalities, is a constant in contemporary society, fueled by traditional media and, even more so, social networks. However, the spectacularization of the private lives of "VIPs" clashes with the right to privacy, recognized both nationally and supranationally. Indeed, the tension between the right to privacy and freedom of information is significantly accentuated in the context of media narratives about the private lives of famous people. The rise of entertainment-oriented journalism and emotional consumption of the news - so-called infotainment - has led to increasing exposure of the lives of famous people, fueling a latent but constant conflict between information needs and protection of the personal sphere.

A particularly topical aspect is the viral spread of content on Instagram, TikTok, and YouTube, where alleged scoops are often launched by individuals who do not operate in the professional news business. Personal accounts or social pages with thousands of followers, not recognized as registered newspapers, improvise themselves as centers of news and investigation, as in the striking case of Fabrizio Corona's publications on the private lives of the Ferragnez, Stefania Nobile and Davide Lacerenza. The media narrative is thus disconnected from any deontological and legal constraints, with potential significant repercussions in terms of civil and criminal liability.

The above considerations call for a careful legal analysis aimed at defining the limits within which news reporting--in general, and scandal reporting in particular--can go without infringing on a person's fundamental rights.

Reference legislation for the right to report
The right to privacy is protected in Italy by Article 2 of the Constitution, as well as Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and Article 8 of the European Convention on Human Rights. In the context of the confidentiality of the individual, however, the legislation on the protection of personal data, as set forth in Legislative Decree 196/2003, as amended, and EU Regulation 679/2016, is relevant.

Freedom of the press and the right to report news, on the other hand, are grounded in Article 21 of the Constitution.

For the purposes of this discussion, moreover, the right to an image, as stipulated in Article 10 of the Civil Code and Articles 96 and 97 of Law 633/1941, assumes particular relevance. These regulations state that a portrait of a person (i.e., essentially a photograph) may be published only with the consent of that person or certain of his or her heirs, unless there are specific circumstances of an exceptional nature, namely: when the reproduction of the image is justified by notoriety or public office covered, by the necessity of justice or police, by scientific, educational or cultural purposes, or when the reproduction is connected with facts, events, ceremonies of public interest or held in public. However, the portrait may not be exhibited or put on the market, when the exhibition or putting on the market would be detrimental to the honor, reputation or even decorum of the person portrayed.

Jurisprudential criteria for legitimate news reporting right
Given the above, it will be understood how, in the case of famous people, one can easily find oneself in the presence of the exception set forth in Article 97 L. 633/1941, such that in case law and doctrine one has come to speak of "implied consent" to the publication of private news and image, resulting from notoriety and the choice to live a public life. However, such consent is not unlimited and must be balanced with the principles established by case law that come to the fore as limits to the right to report news, namely: the objective truth of the published news, the public interest in the knowledge of the fact (so-called "relevance"), the formal correctness of the exposition (so-called "continence") (Cass. civ., no. 16506/2019). Similarly, with regard to the right of criticism, the Supreme Court stated that the prerequisites for the legitimate exercise of the same are "a) the interest in the story, which can be recognized even when it is not the interest of the generality of citizens but that of the category of subjects to whom, in particular, the communication is addressed; b) the continence, that is, the formal and substantive correctness of the exposition of the facts to be understood in the sense that the information must not take on content detrimental to the image and decorum; c) the correspondence between the narration and the facts that actually happened; d) the concrete existence of a public interest in disclosure" (Cass. Civ, n. 2357/2018).

When the right to report prevails: the criteria of case law
Given the above legal framework, the question will arise in which contexts the right of the community to receive information prevails and in which contexts the right of the individual to his or her own privacy prevails. To this end, an examination of the relevant case law is useful.

Limits of the right to report news in general reporting
If the subject about whom the news is disclosed does not enjoy notoriety, clearly it will be more difficult to discern an implied consent to the publication of the image and other personal data concerning him or her, so it will have to be assessed whether one of the other exceptions under Art. 97 L. 633/1941 (need for justice or police, scientific, educational or cultural purposes, or reproduction is related to facts, events, ceremonies of public interest or held in public) and/or one of the criteria developed by case law (truth, relevance/public interest to the news and continence).

In this regard, case law has established that, for the purposes of assessing continence, it is necessary to consider "the offensive significance not only of the individual expressions contained therein, but of the entire context" (Cass. civ, no. 9746/2000) and, thus, considered not to comply with the principle of continence an article that referred to the activity of NGOs that used public funds for the reception of migrants as "pimps who get rich by trafficking blacks" (Court of Appeal Milan sec. II, 20/01/2021, no. 170), inasmuch as it transpired from this that the intention was to direct the reader's attention, not so that he or she would form a negative opinion about the management of public money operated by some political forces, but to believe that the associations under consideration were indiscriminately operating in profiteering ways behind the backs of the weakest (migrants) when institutionally they should have been carrying out welfare activities in their interest, to the detriment of the taxpayer who indirectly paid for such service.

Again, in a news case in which a policeman had been assaulted by another person, resulting in the amputation of a phalanx, a newspaper had published various biographical data, as well as a photograph of the offended person, without the latter's permission. In that case, the Court of Turin (21/11/2022, no. 4471) ruled that these additional data, including the policeman's image and his geographical origin, were not relevant to the story told, as they did not offer useful elements to the public, who only needed to know the news fact and, at most, the offender's personal details - not the victim's.

Gossip as news reporting: limits and legal justifications
More complex is the case where news reporting takes the form of "gossip," as it is more difficult to frame the public interest in the news, which may also simply consist of a romantic relationship of a famous person. In this context, there is a tendency to assume that public interest (and thus relevance) exists when the news is in some way related to the reason for which the person is known (which could also just be notoriety for its own sake, as in the case of a showbiz personality or influencer).

In this regard, for example, in Order No. 19515 of June 16, 2022, the Supreme Court ruled on the limits for the legitimate use of certain images of a famous person in the world of sports, former footballer Gianni Rivera. The case concerned the publication for commercial purposes by a well-known publishing group of photos in which the footballer was not portrayed in the act of sports performance, but in non-sporting clothes and in scenes of everyday life, such as the footballer getting off a plane with a trophy he had won, during a national team retreat with other footballers and during an interview.

In addition to the use of the images, the famous person had also challenged the publisher's production of a number of medals on which his image was depicted and the infringement of copyright on a number of fragments of interviews he had given, which were included in a series of DVDs. In that case, the Supreme Court held that the exception regarding the notoriety of the famous person (Art. 97 L. 633/1941) should not be understood in too strict a sense, especially where the reproduction of the image is in some way ancillary to or indirectly related to the reason for which the person is known. In fact, according to the Supreme Court, there is public interest in the news where, for example, there is a depiction of a well-known footballer leaving for a sports competition (even without a team uniform), with a trophy he has won or during an interview related to his activity, such as those contested in the case at hand, in which, moreover, it was held that such publication had an educational-cultural character since it was ancillary to the narrative.

In a more recent case (Civil Cassation Sec. III - 07/05/2014, No. 9867), in which a non-famous person had challenged the publication of his own photographs in the company of a famous person, accompanying which it was stated that a romantic relationship existed between the two, instead, it was argued that there was nonetheless the public's interest in learning about the private life of the famous person who was part of the news, not mattering that the person to whom he was accompanying was not himself famous. In fact, the photographs in question had to be deemed to be: "(a) conveying news of public interest, albeit parameterized by "the type of scandal publication"; [...]; b) substantially truthful, given that in the case at hand the "truth" of the news coincided with the photographic representation itself all the more so since [the appellant] had indeed complained about the undue extrapolation of the photographs from the broader context of the shooting, but had not contested what was specifically depicted in them, namely "that she had really been in the company of the singer and embraced by him." (c) associated with continual modes of expression, given that the captions and comments could not be deemed offensive or exaggerated, as they reflected in toto the eloquence of the published frames." In the case at hand, it had then been pointed out that the publisher's liability for publication was excluded not because the consent of the non-famous person was not necessary in the case under Article 97 L. 633/1941, but because the constitutional exemption of the right to report news under Article 21 Const. was nevertheless recognizable here.

From the criminal point of view, moreover, and thus on the subject of the crime of defamation, it has been established that, in the context of broadcasts devoted to gossip, characterized by the spectacular nature of gossip, the limits of public interest in the knowledge of the fact and of expressive continence, which are immanent to the exercise of the right of criticism, assume greater elasticity in view of the dialectical context in which the conduct took place and, in particular the parameter of public interest in the knowledge of the fact, which in such broadcasts revolves around the curiosity determined by the private life of well-known personalities, must necessarily be broadened, taking into consideration also the choice of the person concerned to participate in such debates, which implies voluntary exposure to the danger that even aspects of the personal sphere other than those he has decided to make known will be affected by criticism; while expressive continence must be assessed according to the parameters proper to criticism of custom, which allows even lashing tones, as long as they are not gratuitous and relevant to the fact narrated and the concept to be expressed (Criminal Cassation sec. V - 20/03/2019, no. 32829).

This trend is part of an increasingly hybrid context in which the distinction between journalistic information, entertainment, and online gossip is becoming blurred. Indeed, it is not infrequently Instagram pages and YouTube channels not subject to any editorial regulation, but with an enormous capacity for influence and dissemination, that spread privacy-infringing content. The notoriety of the character involved - as in the case of the most followed influencers - cannot in itself justify any kind of media exposure: it remains imperative to respect the criteria of truth, continence and relevance, even and especially in the digital ecosystem where the reputational impact can be immediate and irreversible.

When confidentiality prevails over the right to report
But then, when does the right to celebrity confidentiality prevail instead?

In the first place, corollaries can be drawn from the above indicating that the rights to privacy and the image of the well-known person will certainly prevail in the absence of the requirements of truth, relevance and continence and/or the exceptions set forth in Article 97 L. 633/1941, as well as when the honor and reputation of the individual is harmed (e.g., through the publication of nude images or the use of foul terms). In secundis, it might come in handy to refer to some jurisprudential cases in which it was held that it was not possible to publish images of a famous person and related articles because he or she was not in a public place. Indeed, in such cases, it should strictly be assumed that the person explicitly denied consent to publication, where perhaps in a public place he or she might have granted it implicitly.

Jurisprudence on the limits of the right to report news in private places: the case of Lilli Gruber
In this sense, we include, for example, the decision of the Court of Milan of November 17, 1994, in which journalist Lilli Gruber had challenged the publication by the tabloid newspapers "Novella 2000" and "Oggi" of photographs showing her naked at the edge of the swimming pool of her family's villa, which was bordered by a fence wall. The photos had been taken by a so-called "paparazzo," who - in an interview accompanying the photos - had spoken openly about the difficulties encountered in the shots, as he had to climb a tree and use a telephoto lens for this purpose.

The court had in that case condemned the newspapers, their editors and the paparazzo to pay the total sum of 100 million liras, ruling that "a legitimate publication of images pertaining to the private life of a subject, carried out with a conduct that integrates the case referred to in art. 615 bis of the Penal Code, cannot be hypothesized," and that "the use, consisting of the dissemination in the press, of images pertaining to private life unduly captured in a private place with professional instruments constitutes a violation of the right to privacy." Article 615 bis of the Criminal Code punishes "unlawful interference with private life," i.e., the conduct of those who "through the use of visual or sound filming instruments, unduly obtain news or images pertaining to private life taking place in the places indicated in Article 614," i.e., the domicile or other places of private residence (Paragraph 1), as well as those who "reveal or disseminate, by any means of information to the public, the news or images obtained in the ways indicated in the first part of this article."

Again, in a case pertaining to the publication of photos depicting actor George Clooney in affectionate attitudes with his partner Elisabetta Canalis, inside the park of Villa Oleandra, near Lake Como, the Court of Milan (Trib. Milano, no. 14065/2013) considering the publication of the images unlawful, had jointly condemned the Mondadori S.p.A. group and editor Alfonso Signorini to pay a sum of 300,000 euros in favor of the plaintiff. Subsequently, the Milan Court of Appeals had reduced the amount of compensation, so it had reached the Supreme Court. There, the Supreme Court (Cass. No. 17217/21) clarified that the notoriety of the character does not entail the waiver of the protection of the right to image and privacy in a private place. In particular, it reiterated that if multiple violations of the law occur through the unauthorized publication and dissemination of photographs, the pecuniary damage suffered can and must be compensated, even determining it in equity. In this case, therefore, the judges focused on the economic value of the exploitation of the image and, therefore, it can be said, on the so-called "price of consent," i.e., the fee normally charged by the subject for the publication of his or her image, which helps determine its value and, consequently, the value of the injury.

Quantification of damages for violation of the right to report
On the subject of civil liability for defamation by the press, it has been repeatedly ruled that "the damage to honor and reputation, for which compensation is claimed, is not in re ipsa, identifying the indemnifiable damage not with the lesion of the '.interest protected by the system but with the consequences of such injury, so that the existence of such non-asset damage must be the subject of allegation and proof, even through presumptions, assuming for this purpose relevance, as parameters of reference, the diffusion of the writing, the relevance of the offended and the social position of the victim" (Cass. civ, no. 10596/2020; Cass. civ., no. 4005/2020 Cass. civ., no. 25420/2017; Cass. civ. no. 24474/2014). Added to this is the principle that proof of non-pecuniary damage "can be provided by recourse to notoriety" (Cass. civ., no. 13153/2017).

With regard to the above, it may be useful to have recourse to the "Orientative Criteria for the liquidation of damages from defamation in the press and other mass media" of the Court of Milan (in their 2024 edition), which provide indices for quantifying the compensation due for defamation, also applicable to cases of injury to the right to privacy and that of image. These criteria include:

notoriety of the defamer;
public office or institutional or professional role held by the defamed;
nature of the defamatory conduct (whether it affects the personal and/or professional sphere, whether it violates the truth and/or even continence and relevance, whether it is circumstantiated or generic, whether insulting, denigrating or de-qualifying expressions are used, use of turpilence, possible criminal relevance of the conduct)
repeated conduct, press campaigns;
placement of the article and headlines, space that the defamatory news occupies within the article/book/television or radio broadcast;
intensity of the psychological element in the perpetrator of the defamation (whether there is animus defamandi, whether malice is possible);
medium by which the defamation was perpetrated and its diffusion, possibly even with online edition of the newspaper (excluding the automatic equation between lower circulation (or diffusivity) = less damage, especially in the case of print media that has a very limited scope of diffusion in the territory, but of high diffusivity precisely in that very limited scope, where the same constitutes "territory" of life and relationships of the injured party);
media resonance aroused by the defamatory news attributable to the defamer (ex. false scoop with awareness of initiation of defamatory press campaign, or news given to Ansa-type agency that spreads it universally);
nature and extent of the consequences on the professional activity and life of the defamed;
whether concrete profiles of damage are highlighted or not;
reputation already compromised (e.g., extensive involvement in criminal proceedings);
limited recognizability of the defamed (e.g. photo from behind, failure to give name);
wide time lapse between fact and court application;
subsequent rectification and/or space given to corrective statements by the defamed or rejection of same;
publication of judgment.
Based on the intensity with which the above indices occur in the concrete case, the Court of Milan has identified five "levels of seriousness" of the offense, to which will correspond five ranges of quantification of damages, from "tenuous" (i.e., from 1,175.00 euros) to "exceptional" (i.e., from 58,745.00 euros).

Future prospects for the right to digital reporting
In light of the above, it clearly emerges how the proliferation of scandalous content-often conveyed by social accounts without any editorial responsibility-is redefining the rules of the game in the relationship between notoriety, information, and privacy. While figures such as Fabrizio Corona claim a new investigative journalism "from below," jurisprudence continues to firmly recall the limits imposed by law to protect the dignity and image, even of public figures. Therefore, in the writer's opinion, the time has come for a collective reflection, including a normative one, on how to balance freedom of expression and fundamental rights in the new era of digital news reporting (in line with what has already happened recently with regulations such as the Digital Service Act, which, staying on the subject, allows us to reason in a partially different way, with reference to the issues addressed, also on the role of platforms that host "new news").

Source: Digital Agenda