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

The recent judgment No. 818 of November 12, 2024, issued by the Court of Cassation, provides 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 offense of disclosing the identity of the victim, as outlined in Article 734-bis of the Criminal Code, and the omissive liability of the director of a periodical, as provided by Article 57 of the same code.

The Offense Under Article 734-bis

The judgment emphasizes that the offense of disclosing the identity or image of a person victimized by acts of sexual violence requires a commissive conduct, meaning an active action of disclosure. This conduct can be carried out by anyone and serves as an important tool for protecting the privacy of victims, in accordance with Article 40, second paragraph, of the Criminal Code, which establishes the conditions under which a crime can be configured.

  • The disclosure must occur without the consent of the victim.
  • The protection of privacy is prioritized over the freedom of information.
  • Actions must be assessed on a case-by-case basis, taking into account the context.
Offense of disclosing the identity or image of a victim of sexual violence under Article 734-bis of the Criminal Code - Omissive crime under Article 57 of the Criminal Code - Differences - Indication - Factual situation. The offense of disclosing the identity or image of a victim of sexual violence, under Article 734-bis of the Criminal Code, requires, for the protection of the victim’s privacy, a commissive conduct in a free form, realizable by anyone, compatible, as such, with the provision of Article 40, second paragraph, of the Criminal Code, thus distinguishing itself from the crime outlined in Article 57 of the Criminal Code, which is attributable only to the director or deputy director of the periodical and which posits a liability for an omissive act, arising from the failure to control the content aimed at preventing the commission of crimes through the press. (Factual situation related to the publication, in the "online" edition of a national newspaper, of a judgment concerning sexual violence, not obscured in parts related to the victim’s data).

The Differences with Article 57 of the Criminal Code

A crucial aspect of the judgment is the distinction between the offense under Article 734-bis and the liability of the director of a periodical under Article 57. The latter article imposes an omissive liability, which manifests in the failure to exercise adequate control over the published content. This means that only the director or deputy director is subject to sanction for the lack of intervention, while the disclosure of identities can be made by anyone.

Conclusions

In conclusion, judgment No. 818 of 2024 represents a step forward in the protection of 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 the disclosure of victims' identities is not just a legal issue, but also an ethical one, requiring careful reflection by all parties involved.

Bianucci Law Firm