Defamatory publication: the proof of the damage to a person’s reputation is mandatory
The reputation’s damage suffered by a person as a result of a defamatory article does not exist “in re ipsa”, and must therefore be proved by the person seeking compensation.
Since the damage is often intangible, the use of prognostic assessments and presumptions is permitted, as long as they are based on objective elements, which is the injured party’s responsibility to provide.
These are the principles recently confirmed by the Court of Cassation (with ruling no. 4005 of February 18, 2020), judging on the appeal filed by a publishing company condemned to pay compensation for the reputation’s damage suffered by a professional wrongly mentioned, in an article of a newspaper belonging to the aforementioned company, among the subjects involved in an investigation for abuse of office, spoiling and destruction of natural beauty.
The Supreme Court rejected the appeal reaffirming that “with regard to civil liability for the tort of defamation, the damage to image and reputation, intended as “consequential damage”, it is not “in re ipsa”, since it must be claimed and proved by the person seeking compensation. Therefore, its estimate must be carried out by the judge not on the basis of abstract evaluations, but on the basis of the concrete damage presumably suffered by the victim, as deduced and proved … [omissis] … also through presumptions, assuming for this purpose, as parameters of reference, the diffusion of the piece of writing, the relevance of the offence and the social position of the victim“.
That means that the assessment underlying the estimate of the damage deriving from the offence cannot be based upon merely abstract evaluations, but – given the impalpability of the reputational damage – the recourse to serious, precise and concordant presumptions is admissible, provided that they are based on circumstantial elements different from the fact in itself, to be inferred not only from the professional curriculum of the damaged party but also from other elements, connected to the territorial and social context in which the latter operates.
According to the Court, the abovementioned assessment’s parameters were correctly applied in the contested decision, given that “the personal and social position of the damaged party had been taken into account, with reference both to the objective profile of the offence committed, in relation to the gravity of the unfounded accusation made, and to the subjective profile, regarding the personality of the damaged party and the impact that the false information presumably had in relation to the social and professional context to which it referred to”.
