In recent years, the widespread dissemination of communication tools and mass interaction such as i social networks, real virtual spaces open to all, in which each user can express their opinions and reveal their tastes (leaving a trace), has redefined the terms of all social relations. The employment relationship, and in particular - for what interests us most - the employment relationship employed by the Armed Forces, could not fail to be affected.
On a legal level, this has forced and still forces a difficult task of revision and adjustment of the traditional categories that constitute the cornerstones of the discipline of that relationship. It is the case of the right of criticism of the military-worker (on which we will dwell), on the one hand, and of the employer-controlled power, on the other.
Moreover, with the advent of social media, the expression of the right to criticize is actually able to reach a potentially boundless audience of users in a “click”, and at the same time the possibilities of control can go up to a degree of pervasiveness never experienced before.
So much considered, in substance, cdare to publish on Facebook (and more generally on the internet) those belonging to the Armed Forces or Police without incurring disciplinary sanctions, or worse still in penal penalties?
What are the limits to be respected? What is the right balance between freedom of expression, on the one hand, and protection of the prestige and image of one's own body (as well as the honorability of one's hierarchical superiors or of one's own fellow soldiers), on the other?
There is no doubt, in this regard, that any consideration made in this regard in the military context is in any case - that is to say, despite the specificity of the area considered - a debtor of the reflections matured by the doctrine and above all of the principles of law elaborated by the jurisprudence in the field is labor law that penalty.
This being the case, in order to adequately deal with the matter, it will first be necessary to establish what the shared contents that can come to the fore in legal terms are, and then to highlight the possible consequences of the conduct of the military on the disciplinary and / or criminal level.
1. The legal relevance of the contents shared online by the military
Proceeding with order, we must ask ourselves: can all information shared online by the military acquire legal significance as regards the relationship with the Military Administration?
This question must certainly be answered positively: everything the military decides to share on the net (posts, comments, images, videos) can be considered for this very reason in the public domain, and therefore usable. Doctrine and jurisprudence now seem to have more than consolidated this direction. However, an important clarification is saved: it is necessary to distinguish between publicly shared content on one's own profile (to be considered relevant) and information destined in a confidential manner via private messages to one or more users (unusable in the procedural and procedural field), according to a criterion evidently based on type of tool chosen for sharing - among those made available by the social media - and on the consequent distinct degree of accessibility of the relative data.
We have thus come to a first conclusion: the data shared by the military-user through the use of social networks must be considered usable, except in the case of confidential content, the subject of private messages exchanged in chat or in any case of communications with (adequately) "filtered" access.
2.1 The disciplinary relevance of the conduct
Identified the shared data abstractly relevant in legal terms, as regards the first of the aforementioned areas of relevance, the disciplinary one, the reference to TAR of Friuli-Venezia Giulia, n. 562 / 2016, with which some basic principles have been established on the subject, concluding that the disciplinary sanction imposed on a soldier for posting a photo of his surveillance site at the Milan Expo is legitimate.
In the judgment of the Trieste judges, in particular, the distinction between licit and illicit conduct on the disciplinary level lies essentially in the damage or otherwise of the image made public.
In this case, the military posted on his bulletin board photographs depicting the base camp at the Expo in a state of total degradation, completely flooded as a result of abundant rainfall, testifying to the precarious situation in which the staff at the Armed Forces service was operating in such an important context for the nation. The photos were followed by negative comments from third parties.
In compliance with the aforementioned general criterion, the Judge observed in this regard that Facebook must be considered a public site, because any photograph, image or comment posted on it lends itself to be diffused to a number that cannot be determined. nor predictable of subjects. Given this, if the military intends to formulate any criticisms or observations, it is obliged to use the confidential communication systems within the membership body, codified by Legislative Decree n. 60 / 2010 (as well as by the TU dprn 90 / 2010), and not to publish photographs or disseminate comments (including third parties) capable of harming the prestige of the Administration.
Therefore it was concluded for the rejection of the proposed appeal and the consequent confirmation of the legitimacy of the disciplinary sanction imposed (7 delivery days).
2.2 The criminal relevance of the conduct
In addition to the disciplinary field, the undue use of social networks by the personnel working for the Army - in cases where the harmfulness of the expressions used and in any case of shared contents, aimed specifically at superiors or other comrades, as well as at a military corps, rises to a particular gravity - it can assume relevance on the penal level.
In this regard, the crime of defamation is provided, provided for and punished by art. 227 of the peacetime military penal code. With this in mind, "1. The military who, (…) communicating with more than one person, offends the reputation of another military, is punished, if the fact does not constitute a more serious crime, with military confinement up to six months. 2. If the offense consists in the attribution of a determined fact, or is carried by means of the press or by any other means of advertising, or in a public act, the penalty is military confinement from six months to three years. 3. If the offense is carried to a military body, or to an administrative or judicial military body, the penalties are increased".
The jurisprudence has specifically held that the defamatory conduct perpetrated on the network must be linked to the aggravated hypothesis referred to in the second paragraph of the aforementioned provision, since social networks must be brought back to the list of “other means of advertising”, To which the provision refers, given their suitability to reach an indefinite number of recipients.
This is what the recent Cass. I Pen., 4 March 2019, n. 9385, which dealt with the case of a military man brought to trial for offending the reputation of two of his superiors - the Company commander and the NORM commander -, addressing them on his Facebook profile as "two kids"And"psychopaths in uniform".
The Supreme Court held that the crime of defamation was integrated in this case, moreover in the aforementioned aggravated form, observing that “pursuant to art. 227, paragraph 2, of the military penal code of peace, the crime of defamation is aggravated "if the offense is carried by means of the press or by any other means of advertising", as precisely happened in the case in question (it is reiterated that the diffusion of a defamatory message through the use of a "Facebook" bulletin board complements a hypothesis of aggravated defamation, since it is a matter of conduct potentially capable of reaching an undetermined or otherwise quantitatively appreciable number of people: Cass. Sec. I Pen., N. 24431 of the 28 / 04 / 2015".
The recurrence of the criticism right, which presupposes, contrary to what actually occurred, that "the offense does not result in a gratuitous and unjustified aggression to the personal sphere of the passive subject but is "contained" (requisite of "continence") in the context of the issue pertaining to the fact from which the critic has drawn inspiration".
A consolidated approach has thus been confirmed, both in military criminal jurisprudence and in ordinary criminal case law, which brings these cases back to the corresponding crime of defamation aggravated by the use of advertising means, pursuant to art. 595 cp, paragraph 3 (see, ex multis, Cass. , Section V Pen., 3 May 2018, n. 40083).
If anything, it will be good to add that failure to expressly identify the recipient or recipients of the defamatory expressions is not sufficient to determine the exclusion of criminal liability. As has long been clarified by the jurisprudence, in fact, "The crime of defamation is configured via telematic tools if the defamatory comments, published through posts on the Facebook social network, can, even in the absence of the indication of names, objectively refer to a specific person, even if these comments are in fact addressed towards his family"(In this sense, for example, Cass., Section V Pen., 19 October 2017, n. 101).
We can now draw the strings of the speech, noting that it is very clear that the spread of social networks represents one of the major innovations of recent years, and as such it has a decisive impact on every aspect of one's relationship life.
The military sphere could not be excluded by the effects - positive and negative - deriving from the large-scale use of these mass media.
The potential disciplinary and criminal relevance of the contents shared on the web is now a foregone and peaceful fact in ordinary jurisprudence, administrative and military. This with the only relevant exception of information that is shared privately, with one or more specific subjects (and therefore with the express exclusion of the generality of third parties), and without prejudice to the right of criticism, provided that this occurs within the limits of the so-called continence, as well as in the internal channels specifically prepared by the military system.
It can only lead to a warning to each of us, aimed at increasing awareness of the relevance and at the same time of the delicacy (extreme) of the communication tools available today, and the consequences (even dramatic) that their superficial use may entail.
Avv. Francesco Fameli
an expert in military administrative law
Photo: US DoD / web / US Air Force / US Army