Social media has revolutionized gossip, but not legal rules. The right to report news has clear 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 line between freedom of the press and personal privacy has become increasingly blurred, aided – to cite just one recent example – by the return of controversial media figures such as Fabrizio Corona and his investigations into influencers, celebrities, and entertainers – from Ferragnez to Vanna Marchi's daughter – often reposted on social media pages that are not news outlets.

The right to report news in the digital age: new challenges
Media exposure of the private lives of public figures has become increasingly aggressive and sensational, often driven by clickbait and virality rather than a genuine desire to inform. This raises profound questions not so much about individual cases, but about the role that the law—and more generally, the ethics of communication—should play in a context where anyone can become a "reporter" without professional mediation. In this scenario, there is a risk of a progressive erosion of the guarantees protecting 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 the duty of responsibility, especially when digital platforms amplify content that – while not formally violating the rules – ends up profoundly altering the public perception of the very concept of news.

In this fragmented and hyperconnected landscape, it becomes crucial to ask who can claim to be entitled to "report the news" and how far we can go in recounting the private lives of others, especially when the goal is not a service of public interest, but sensationalism for its own sake.

Regulatory framework of the right to report news
Let us try to analyze the delicate balance between freedom of information and the right to report news, in their broadest sense of gossip and celebrity news, and the rights to privacy and image, particularly those of famous people, to whom exceptions related to notoriety are more often applied. The article will then focus on the analysis of relevant case law, which highlights in particular when the right to report prevails and when the right to privacy of the individual being reported prevails. Finally, brief notes will be provided on the quantification of damage to reputation and/or defamation.

Constitutional foundations of the right to report news
Gossip, understood as the public dissemination of news about the private lives of well-known figures, is a constant feature of contemporary society, fueled by traditional media and, even more so, by social networks. However, the sensationalization of the private lives of "VIPs" clashes with the right to privacy, recognized at both the national and supranational levels. The tension between the right to privacy and freedom of information is significantly accentuated in the context of media coverage of the private lives of famous people. The rise of journalism geared towards spectacle and the emotional consumption of news—so-called infotainment—has led to increasing exposure of the lives of famous people, fueling a latent but constant conflict between the need for information and the protection of privacy.

A particularly topical issue is the viral spread of content on Instagram, TikTok, and YouTube, where alleged scoops are often launched by individuals who do not work in the field of professional journalism. Personal accounts or social media pages with thousands of followers, not recognized as registered publications, improvise themselves as news and investigation centers, as in the striking case of Fabrizio Corona's publications on the private lives of Ferragnez, Stefania Nobile, and Davide Lacerenza. Media narratives are thus disconnected from any ethical and legal constraints, with potentially significant implications in terms of civil and criminal liability.

The above considerations require careful legal analysis to define the limits within which news reporting—in general, and scandal reporting in particular—can go without infringing on fundamental human rights.

Reference legislation for the right to report news
The right to privacy is protected in Italy by Article 2 of the Constitution, as well as by 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 personal privacy, the legislation protecting personal data, referred to in Legislative Decree 196/2003 and subsequent amendments, and EU Regulation 679/2016, is also relevant.

Freedom of the press and the right to report news are based on Article 21 of the Constitution.

For the purposes of this discussion, image rights are also particularly relevant, as established by Article 10 of the Italian Civil Code and Articles 96 and 97 of Law 633/1941. These provisions establish that a portrait of a person (i.e., essentially a photograph) may only be published with the consent of that person or certain heirs, unless there are specific exceptional circumstances, namely: when the reproduction of the image is justified by the person's notoriety or public office, by the needs of justice or law enforcement, by scientific, educational, or cultural purposes, or when the reproduction is connected to facts, events, or ceremonies of public interest or that took place in public. However, the portrait may not be displayed or marketed when such display or marketing would be prejudicial to the honor, reputation, or even the decorum of the person portrayed.

Case law criteria for legitimate reporting rights
Given the above, it is understandable how, in the case of famous people, it is easy to find oneself in the presence of the exception referred to in Article 97 of Law 633/1941, such that in case law and doctrine, there has been talk of "implicit consent" to the publication of private news and images, deriving from notoriety and the choice to live a public life. However, this consent is not unlimited and must be balanced with the principles established by case law that are relevant as limits to the right to report news, namely: the objective truth of the published news, the public interest in knowing the fact (so-called 'relevance'), the formal correctness of the presentation (so-called 'restraint') (Civil Cassation, No. 16506/2019). Similarly, with regard to the right to criticize, the Supreme Court has stated that the prerequisites for the legitimate exercise of this right are "a) the interest in the story, which can be recognized even when it is not the interest of the general public but that of the category of subjects to whom, in particular, the communication is addressed; b) restraint, i.e., the formal and substantive correctness of the presentation of the facts, meaning that the information must not be damaging to the image and decorum of the subject; c) the correspondence between the narrative and the facts that actually occurred; d) the concrete existence of a public interest in disclosure" (Civil Cassation, No. 2357/2018).

When the right to report prevails: the criteria of case law
Given the legal framework outlined above, one might ask in which contexts the right of the community to receive information prevails and in which contexts the right of the individual to privacy prevails. To this end, it is useful to examine the relevant case law.

Limits to the right to report in general news
If the subject of the news is not well known, it will clearly be more difficult to identify implicit consent to the publication of images and other personal data concerning them, so it will be necessary to assess whether one of the other exceptions referred to in Article 97 of Law 633/1941 applies (necessity for justice or police purposes, scientific, educational, or cultural purposes, or reproduction is linked to facts, events, or ceremonies of public interest or held in public) and/or one of the criteria developed by case law (truth, relevance/public interest in the news, and restraint).

In this regard, case law has established that, for the purposes of assessing restraint, it is necessary to consider "the offensive nature not only of the individual expressions contained therein, but of the entire context" (Civil Cassation, No. 9746/2000) and, thus, considered that an article referring to the activities of non-profit organizations that used public funds to welcome migrants as "pimps who enrich themselves by trafficking blacks" did not comply with the principle of restraint (Court of Appeal of Milan, Section II, 20/01/2021, No. 170), as this revealed the intention to direct the reader's attention, not so that they would form a negative opinion about the management of public money by certain political forces, but to believe that the associations in question were operating indiscriminately in an exploitative manner at the expense of the most vulnerable (migrants) when institutionally they should have been carrying out welfare activities in their interest, to the detriment of taxpayers who indirectly paid for this service.

Furthermore, in a case reported in the news in which a police officer had been assaulted by another individual, resulting in the amputation of a phalanx, a newspaper published various personal details and a photograph of the victim without his consent. In this case, the Court of Turin (November 21, 2022, No. 4471) ruled that such additional data, including the image of the police officer and his geographical origin, were not relevant to the story, as they did not offer any useful information to the public, who only needed to know the facts of the case and, at most, the personal details of the offender – not the victim.

Gossip as news: legal limits and justifications
The case is more complex when the news takes the form of "gossip," as it is more difficult to frame the public interest in the news, which may simply consist of a celebrity's romantic relationship. In this context, there is a tendency to believe that public interest (and therefore relevance) exists when the news is in some way linked to the reason why the person is famous (which could even be fame for its own sake, as in the case of celebrities or influencers).

In this regard, for example, with Order No. 19515 of June 16, 2022, the Court of Cassation ruled on the limits for the legitimate use of certain images of a famous figure in the world of sports, former soccer player 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 playing sport, 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 training camp with other footballers, and during an interview.

In addition to the use of images, the famous person had also contested the publisher's production of medals bearing his image and the infringement of copyright on a series of excerpts from interviews he had given, included in a series of DVDs. In this case, the Court of Cassation held that the exception concerning the notoriety of the famous person (Article 97 of Law 633/1941) should not be interpreted too strictly, especially where the reproduction of the image is in some way incidental or indirectly related to the reason for which the person is famous. In fact, according to the Supreme Court, there is public interest in the news where, for example, there is a representation of a well-known soccer player leaving for a sports competition (even without the team uniform), with a trophy won or during an interview related to his activity, such as those contested in the case in question, in which, moreover, it was considered that such publication was of an educational and cultural nature as it was incidental to the narrative.

In an older case (Civil Cassation Section III – 07/05/2014, no. 9867), in which a non-famous person had contested the publication of photographs of themselves in the company of a famous person, accompanied by a caption stating that the two were in a romantic relationship, it was argued that there was nevertheless public interest in learning about the private life of the famous person who was part of the news, without noting that the person accompanying them was not famous themselves. In fact, the photographs in question were to be considered: "a) conveying news of public interest, even if based on 'the type of scandalous publication'; [...]; b) essentially truthful, given that in this case the 'truth' of the news coincided with the photographic representation itself, especially since [the appellant] had actually complained about the undue extrapolation of the photographs from the broader context of the shoot, but had not contested what was specifically depicted in them, namely 'that she had actually been in the company of the singer and had embraced him'; c) associated with restrained forms of expression, given that the captions and comments could not be considered offensive or exaggerated, as they fully reflected the eloquence of the published photographs." In the case in question, it was then pointed out that the publisher's liability for the publication was excluded not because the consent of the non-famous person was not necessary in this case pursuant to Article 97 of Law 633/1941, but because the constitutional exemption of the right to report news pursuant to Article 21 of the Constitution was nevertheless applicable here.

From a criminal law perspective, however, and therefore with regard to the crime of defamation, it has been established that, in the context of gossip programs, characterized by the sensationalization of rumors, the limits of public interest in knowing the facts and of expressive restraint, inherent in the exercise of the right to criticize, become more flexible in view of the dialectical context in which the conduct took place and, in particular, the parameter of public interest in knowing the facts, which in such programs revolves around curiosity about the private lives of well-known figures, must necessarily be broadened, also taking into account the choice of the person concerned to participate in such debates, which implies voluntary exposure to the risk of criticism of aspects of their personal life beyond those they have decided to make public; while restraint in expression must be assessed according to the parameters of social criticism, which allows for scathing tones, provided they are not gratuitous and are relevant to the facts narrated and the concept to be expressed (Criminal Cassation Section 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. In fact, it is not uncommon for content that violates privacy to be disseminated by Instagram pages and YouTube channels that are not subject to any editorial regulation but have enormous influence and reach. The notoriety of the person involved—as in the case of the most followed influencers—cannot in itself justify any kind of media exposure: respect for the criteria of truth, restraint, and relevance remains essential, especially in the digital ecosystem where the impact on reputation can be immediate and irreversible.

When confidentiality prevails over the right to report news
But then, when will the right to privacy of famous people prevail?

Firstly, from the above, it can be concluded that the rights to privacy and image of the well-known person will certainly prevail in the absence of the requirements of truth, relevance, and restraint and/or the exceptions referred to in Article 97 of Law 633/1941, as well as when the honor and reputation of the individual are damaged (for example, through the publication of nude images or the use of obscene terms). Secondly, it may be useful to refer to some case law in which it was argued that it was not possible to publish images of a famous person and related articles because they were not in a public place. In fact, in such cases, it should strictly be considered that the subject has explicitly denied consent to publication, whereas in a public place they may have implicitly granted it.

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

In this case, the Court ordered the newspapers, their editors, and the paparazzo to pay a total of 100 million lire, ruling that "it is not conceivable that images relating to a person's private life can be legitimately published if they have been obtained through conduct that constitutes the offense referred to in Article 615 bis of the Criminal Code" and that "the use, consisting of the dissemination in the press, of images relating to private life unduly obtained in a private place with professional equipment constitutes a violation of the right to privacy." Article 615 bis of the Italian Criminal Code punishes "unlawful interference in private life," i.e., the conduct of those who "by means of visual or audio recording equipment, unlawfully obtain information or images relating to private life taking place in the places indicated in Article 614," i.e., the home or other places of private residence (paragraph 1), as well as those who "reveal or disseminate, by any means of public information, the information or images obtained in the manner indicated in the first part of this article."

Furthermore, in a case concerning the publication of photos depicting actor George Clooney in affectionate poses with his partner Elisabetta Canalis, inside the grounds of Villa Oleandra, near Lake Como, the Court of Milan (Trib. Milano, No. 14065/2013), considering the publication of the images unlawful, had jointly ordered the Mondadori S.p.A. group and editor Alfonso Signorini to pay a sum of €300,000 to the plaintiff. Subsequently, the Milan Court of Appeal reduced the amount of compensation, and the case was brought before the Court of Cassation. In that court, the Supreme Court (Cass. no. 17217/21) specified that the notoriety of the person does not imply a waiver of the protection of the right to image and privacy in a private place. In particular, it reiterated that, in the event of multiple violations of the law through the unauthorized publication and dissemination of photographs, the financial damage suffered can and must be compensated, even if determined on an equitable basis. In this case, therefore, the judges focused on the economic value of the exploitation of the image and, therefore, on the so-called 'price of consent', i.e., the compensation normally requested by the subject for the publication of their image, which helps to determine its value and, consequently, the value of the damage.

Quantification of damage caused by violation of the right to report news
With regard to civil liability for defamation in the press, it has been repeatedly ruled that "the damage to honor and reputation for which compensation is sought is not in re ipsa, since the damage eligible for compensation is identified not with the injury to the interest protected by the legal system but with the consequences of that injury, so that the existence of such non-pecuniary damage must be alleged and proven, including through presumptions, taking into account, as reference parameters, the dissemination of the writing, the relevance of the offense, and the social position of the victim" (Civil Cassation, no. 10596/2020; Civil Cassation, no. 4005/2020 Civil Cassation, no. 25420/2017; Civil Cassation no. 24474/2014). To this must be added the principle that proof of non-pecuniary damage "may be provided by recourse to common knowledge" (Civil Court, No. 13153/2017).

With regard to the above, it may be useful to refer to the "Guidelines for the settlement of damages for defamation in the press and other mass media" issued by the Court of Milan (in their 2024 edition), which provide indices for quantifying the compensation due for defamation, also applicable to cases of violation of the right to privacy and image rights. Among the criteria in question, the following are noteworthy:

notoriety of the defamer;
public office or institutional or professional role held by the defamed party;
nature of the defamatory conduct (whether it affects the personal and/or professional sphere, whether it violates the truth and/or also moderation and relevance, whether it is detailed or generic, whether insulting, disparaging or disparaging expressions are used, use of foul language, possible criminal relevance of the conduct);
repeated conduct, press campaigns;
placement of the article and headlines, space occupied by the defamatory news within the article/book/television or radio broadcast;
intensity of the psychological element on the part of the author of the defamation (whether there is animus diffamandi, whether there is intent);
means by which the defamation was perpetrated and its dissemination, possibly also with the online edition of the newspaper (excluding the automatic equation of lower circulation (or diffusion) = less damage, especially in the case of a press medium that has a very limited circulation in the territory but high diffusion in that very restricted area, where it constitutes the 'territory' of life and relationships of the injured party);
media coverage generated by defamatory news attributable to the defamer (e.g., false scoop with the knowledge of the launch of a defamatory press campaign, or news given to an agency such as Ansa, which disseminates it universally);
nature and extent of the consequences on the professional activity and life of the defamed party;
whether concrete aspects of damage are highlighted or not;
already compromised reputation (e.g., extensive involvement in criminal proceedings);
limited recognizability of the defamed party (e.g., photo from behind, failure to indicate the name);
long time lapse between the event and the legal action;
subsequent correction and/or space given to corrective statements by the defamed party or refusal of the same;
publication of the judgment.
Based on the intensity with which the above indicators are present in the specific case, the Court of Milan has identified five "levels of severity" of the offense, which correspond to five bands of quantification of damages, from "minor" (i.e., from €1,175.00) to "exceptional" (i.e., from €58,745.00).

Future prospects for digital reporting rights
In light of the above, it is clear that the proliferation of scandalous content—often conveyed by social media 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 are calling for a new form of investigative journalism "from below," case law continues to firmly uphold the limits imposed by the law to protect dignity and image, even for public figures. In the author's opinion, the time has come for collective reflection, including regulatory reflection, on how to balance freedom of expression and fundamental rights in the new era of digital news (in line with what has already happened recently with regulations such as the Digital Services Act, which, on the same subject, allows us to think in a slightly different way, with reference to the issues addressed, including the role of platforms that host 'new news')..

Source: Digital Agenda