Analysis of Judgment No. 818 of 2024: Protection of Privacy in Sexual Violence Cases

The recent judgment No. 818 of November 12, 2024, issued by the Court of Cassation, offers a valuable opportunity to reflect on the delicate issue of protecting the privacy of victims of sexual violence. In particular, this decision clarifies the differences between the misdemeanor of disclosing the particulars of the victim, as per art. 734-bis of the Criminal Code, and the omission liability of a newspaper director, provided for by art. 57 of the same code.

The Misdemeanor under Art. 734-bis

The judgment emphasizes that the misdemeanor of disclosing the particulars or image of a victim of sexual violence requires a commissive conduct, i.e., an active act of disclosure. This conduct can be carried out by anyone and serves as an important tool for protecting victims' privacy, in accordance with art. 40, paragraph two, of the Criminal Code, which establishes the conditions under which a crime can be constituted.

• Disclosure must occur without the victim's consent.
• The protection of privacy takes precedence over freedom of information.
• Conduct must be assessed on a case-by-case basis, taking the context into account.

Misdemeanor of disclosing the particulars or image of a victim of sexual violence under art. 734-bis of the Criminal Code - Own omission crime under art. 57 of the Criminal Code - Differences - Indication - Factual circumstances. The misdemeanor of disclosing the particulars or image of a victim of sexual violence, under art. 734-bis of the Criminal Code, requires, for the protection of the victim's privacy, a free-form commissive conduct, performable by anyone, compatible, as such, with the provisions of art. 40, paragraph two, of the Criminal Code, thus distinguishing itself from the factual circumstance of the crime under art. 57 of the Criminal Code, which is attributable only to the director or deputy director of the newspaper and which postulates liability for one's own omission, arising from the failure to exercise content control aimed at preventing the commission of crimes through the press. (Factual circumstance relating to the publication, in the "online" edition of a national newspaper, of a judgment on sexual violence, not redacted in the parts relating to the victim's data).

Differences with Art. 57 of the Criminal Code

A crucial aspect of the judgment is the distinction between the misdemeanor under art. 734-bis and the liability of a newspaper director under art. 57. The latter article imposes omission liability, which materializes in the failure to exercise adequate control over published content. This means that only the director or deputy director is subject to sanction for the lack of intervention, while the disclosure of particulars can be carried out by anyone.

Conclusions

In conclusion, judgment No. 818 of 2024 represents a step forward in protecting the privacy of victims of sexual violence. It highlights the need for a balance between freedom of the press and the protection of individual rights, emphasizing the importance of responsible behavior by media and journalists. This decision reminds us that disclosing victims' particulars is not just a legal issue, but also an ethical one, requiring careful consideration from all involved parties.