Analysis. The judge said Facebook occupies a ‘special position’ in that the social network is an essential part of ‘the Italian political debate.’ Facebook had banned Italy’s extreme right party from the platform for spreading hate and inspiring attacks.

Italian court rules CasaPound has a constitutional right to use Facebook

On Thursday, a civil court in Rome ruled that Facebook Ireland Ltd. must reactivate the page of CasaPound Italy (CPI) and the personal profile of Davide Di Stefano, its administrator. The judge also ruled that for each day of delay after the company was made aware of the court order, Facebook would have to pay the plaintiffs €800 as compensation. 

The case comes after Facebook’s actions on Sept. 9, when it deleted dozens of pages and personal profiles related to the organization headquartered in Rome, Via Napoleone III, as well as to Forza Nuova. At the time, the company justified its decision by saying that “persons or organizations that spread hatred or attack others on the basis of who they are will not have a place on Facebook and Instagram.”

In an emergency procedure (according to Art. 700 of the Italian Civil Code), Judge Stefania Garrisi ruled in favor of the requests put forward by CPI, for two main reasons. First, it recognized the “central and primary role played by the Facebook service” and the “special position held by the service provider,“ arguing that this justifies the “pre-eminent importance” of the implementation of an essential constitutional principle, i.e. that of the pluralism of political parties, to the effect that if a subject is not present on the social network, they are “de facto excluded (or highly limited) from taking part in the Italian political debate.” As a result, the relationship between Facebook and any of its users must “strictly adhere to the respect of constitutional principles.”

Secondly, the judge ruled that CPI and its Facebook page cannot be subject to punishment for the behavior of some of the organization’s members, even if this constitutes criminal behavior; furthermore, such conduct was not being directly promoted through the social media accounts of the organization, but only mentioned in external printed media. The principle is that CPI as a whole cannot be automatically held responsible for what its members do, and the Facebook page was not used to promote any illegal actions.

Despite the well-known character of the plaintiffs in question, it’s difficult to argue that Facebook should have the ultimate power to eliminate them at will from a virtual space that plays an undeniable role in the political debate. If this private company has a right to deal with Italian constitutional principles as it wishes, it could also do the same to any other organization it doesn’t like.

The fundamental question is, however, whether or not CPI abides by the Italian Constitution. Answering this question lies outside the purview of an emergency ruling. The court order mentioned in passing the fact that CasaPound has been “legitimately operating” on the Italian political scene since 2009, but it avoids going into the substance of the issue. This aspect could be fully assessed as part of the proceedings of a regular trial, which would be the next step if Facebook decides to appeal the ruling.

Another striking aspect among many is the severity of the sentence, which also ordered Facebook to pay CPI €15,000 in legal costs, which is around three times higher than the average amount awarded by the Court of Rome in ordinary proceedings.

As of Friday, Facebook had complied with the court order and restored access to the page, while saying in a statement that it was “examining” the order to decide regarding its further steps.

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