Editorial Director: Giusella Finocchiaro
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posted by admin on maggio 27, 2015

computer crimes

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According to the Court of Ivrea (Italy) insulting remarks directed against colleagues and superiors posted on Facebook are a sufficiently serious cause for justifying the dismissal of an employee.

With an injunction issued on the 28th January 2015, the Court of Ivrea rejected an appeal by a former employee asking to be reinstated at work following lawful dismissal for misconduct. The employee had been fired for posting seriously offensive comments on Facebook against his employers and some women colleagues.

While admitting to posting the offensive remarks on his Facebook account, the claimant had applied to the Court claiming that such conduct could not be considered sufficiently serious to justify his dismissal and in addition to reinstatement demanded damages.

This is the second procedure in which the employee has taken legal action to ask to be reinstated at work at the same company. The work relationship had already been terminated in 2012. However, certain contractual irregularities had prompted the man to file an appeal and at the end of 2012 the Court had accepted his request, annulling the terms of the fixed-term contract that he had stipulated with the company and condemning the latter to reinstating the claimant and in addition to the payment of all wages accrued.

Consequently, in 2014 the company had rehired the employee, but had decided to exempt him from effectively resuming work, thus the employee had begun to receive a salary without having to work.

Paradoxically this condition, which to some might seem advantageous, led the employee to libel his employers on Facebook. In fact the man published the letter of reinstatement on the social network, accompanying it with some highly insulting remarks against his superiors who had reinstated him and also against some women colleagues.

As the Ivrea Court judge stressed, the posts were not restricted to the “friends” of the claimant, but “could potentially have been seen by about a billion social network users” and were only removed after a cease and desist order on the part of the company. All these factors carried weight in the judge’s final decision, according to which the seriousness of the former employee’s misconduct is considered “severe enough to preclude even temporary continuation of the work relationship”.

In the judge’s decision it is explained that the insults, especially the sexist insults directed at the women colleagues, who were totally unconnected to the previous litigation between the employers and the employee, indicate “the will of the claimant to defame both the company and also some of its employees, in a manner which was potentially gravely damaging to their reputations”.

The claimant failed in his attempt to justify his behaviour as “a reaction, even though an excessive and abnormal (but instinctive) one”. The judge underlined that if it had been provoked by an instinctive gesture –although rash – the employee would have taken prompt action to eliminate the post and would not have waited more than two weeks to do so, as in fact happened. This lengthy period of time that the comments remained online also seems to suggest that the claimant had absolutely no perception of the serious nature of his misconduct.

In light of these considerations, the Court dismissed the claimant’s appeal and ordered him to pay the company’s legal costs, amounting to 3,500€.

This decision by the judge of the Court of Ivrea confirms the case law regarding lawful dismissal for misconduct for defamatory posts which offend employers, as already established by the Court of Appeal of Turin (judgment of 17th July 2014, n. 164) and the labour section of the Court of Milan (order of 1st August, 2014).

 

 

The decision of the Italian Supreme Court no. 5525 of the 5th of April, 2012 is a real leading case which affirms the right to contextualization of the information and the right to the truth at the present time.

It is not a decision on the right to oblivion, as superficially commented. On the contrary, it is a decision which states the right to the updating of the news.

The truth is truth only if it is present truth. If the truth is dated 20 years ago, it is a partial truth, and therefore is not truth.

The facts: a politician is charged with corruption in 1993. The news is properly reported in the newspapers of the time. Then the politician is acquitted. After many years typing the name of the politician in search engines the results show the news of the imputation, but not that of the acquittal.

Of course, the first news is true. But today it represents a partial truth, a false representation of reality, profoundly affecting the right to personal identity.

The news, therefore, has to be contextualized.

The theme is amply illustrated in THIS article, which is quoted in the decision.

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