Whether defamation has a “public” character is determined not by the actual number of persons who encountered the defamatory content, but by its potential accessibility.
Defamation
Pursuant to Article 212 of the Criminal Code, it is a criminal offence to make a false imputation against another person concerning conduct or characteristics that may adversely affect that person’s standing in public opinion or expose them to a loss of the confidence necessary for their occupation. This means that attributing to a person qualities which, in the general social assessment, would reflect negatively upon them — and in particular would render them unfit for the position they hold or the activities they carry out — may give rise to criminal liability. Such conduct is prosecuted by way of a private prosecution brought by the person defamed.
Consequences of the Public Nature of Defamation
Importantly, such conduct may constitute a criminal offence even where the statements made are truthful — an “imputation” need not necessarily involve an accusation of falsehood. Under Article 213 of the Criminal Code, it is only where such an imputation is made in a non-public manner and is true that no criminal offence can be said to have been committed.
What Does “Public” Mean?
It is accepted that, in assessing whether a person accused of defamation acted publicly, what matters is not how many individuals actually received the statement, but rather that the circle of its intended recipients — that is, those who could have encountered it — was, by design, indeterminate. It is therefore irrelevant whether a defamatory notice in a newspaper is read by three people or by fifty thousand; what matters is that it was accessible to anyone who chose to purchase that publication.
Social Media as a Forum for Defamation
The case law consistently holds that the internet — and social media in particular — may be (and most commonly is) of a nature that renders content published thereon publicly accessible. Unless the person publishing content does so within a closed group over whose membership list they exercise direct control, or by means of a private message, they must accept that the post, entry, or tweet they publish may be read by any user of the platform. This translates directly into potential legal consequences.