Defamatory Comments on Social Media: When the Operator Is Liable for Failing to Remove Them

Blogs, websites and social-media pages are now standard tools for lawyers, consultants and other self-employed professionals. They are used to provide information, comment on current affairs and promote professional services, but they often also allow users to post comments and reactions.

Opening these spaces to the public entails a responsibility that should not be underestimated. Professionals are not required to review every user contribution in advance. However, once they become aware of content that is manifestly unlawful and are able to remove it, leaving the comment online may give rise to civil liability and, where the further requirements are met, criminal liability as well.

The case decided by the Italian Supreme Court

In order no. 22999 of 2026, the First Civil Division of the Italian Supreme Court of Cassation upheld an order requiring a blogger to pay €23,000 in damages to a journalist.

The dispute arose from a post concerning a protest by a number of asylum seekers. The post questioned the accuracy of a report published by the journalist, suggesting that it was false or had not been adequately verified. Numerous derogatory comments concerning the journalist, who was readily identifiable, were subsequently posted on the blog.

The Court found that the blogger had become aware of the offensive comments and, despite that knowledge, had left them online, removing them only after the proceedings had been commenced. The award was therefore upheld, including the assessment of non-pecuniary damage on an equitable basis, applying the criteria set out in the Milan Tables.

The ruling does not establish that the operator is automatically liable for every item of content posted by users. Rather, liability was linked to actual knowledge of the comments, their manifestly defamatory nature and the operator’s deliberate failure to remove them. The blogger’s subsequent activity on the page, including the sharing of certain comments, was treated as evidence of that knowledge.

No general obligation of prior monitoring

The first principle is that there is no general obligation to monitor users’ comments in advance.

This rule is consistent with the framework governing information-society services. Article 17 of Legislative Decree no. 70/2003 excludes, for providers falling within its scope, a general obligation to monitor the information they transmit or store and a general obligation actively to investigate facts or circumstances indicating unlawful activity. The Italian Supreme Court has applied this principle to blog operators who do not carry out a preventive selection and review of comments.

The mere presence of an offensive comment therefore does not, by itself, prove either that the operator knew of it or that the operator endorsed it. It is necessary to examine how the digital space actually operates: whether comments are published automatically, whether they are subject to prior moderation, whether the operator intervenes in individual items of content and what evidence establishes the operator’s actual knowledge.

The position may be different where the operator plays an active role in filtering, selecting, indexing or promoting content. In that situation, liability cannot be assessed mechanically by applying the rules applicable to a merely passive provider.

Knowledge of the content and the duty to remove it

The second principle concerns the stage after publication.

In order no. 17360 of 2025, the Third Civil Division held that the duty to remove content does not arise only after notice from a judicial or administrative authority. It is sufficient for the operator to acquire, by any means, actual knowledge of facts or circumstances making the unlawfulness of the content manifest.

A notice from an authority is a qualified source of knowledge, but it is not the only possible one. A report submitted by the person concerned may also be relevant, provided that it is sufficiently specific and enables a diligent operator to identify the content and understand its manifestly unlawful nature.

A report should therefore not merely state that a “comment is defamatory”. It is advisable to identify the URL or the precise location of the content, quote the expressions being challenged, explain why they refer to the reporting person and expressly request removal. These elements are also consistent with the notice-and-action mechanism under Article 16 of Regulation (EU) 2022/2065 on a Single Market for Digital Services. A notice must be sufficiently precise and adequately substantiated and must allow the content to be identified without a detailed legal examination.

Once the operator has acquired knowledge of manifestly unlawful content, it must act without undue delay to remove it or disable access to it. The Digital Services Act provides that, subject to certain conditions, a hosting service provider is not liable for illegal information stored at the request of a recipient of the service, but must act promptly once it becomes aware of the illegality or of facts and circumstances making that illegality manifest.

Civil and criminal liability: two distinct issues

Civil and criminal liability are not the same and cannot be presented as the automatic consequence of merely operating a blog or social-media page.

From a civil-law perspective, the issue concerns compensation for damage caused by the continued online availability of the content, in accordance with the general rules governing unlawful conduct and the rules applicable to the service provider. The claimant must establish, among other matters, the manifestly unlawful nature of the content, the operator’s actual knowledge, the operator’s ability to intervene and the delay in removing the content.

From a criminal-law perspective, the Italian Supreme Court has rejected the proposition that a blogger is liable merely because of his or her position or because he or she administers the digital space. As a general rule, this is not a form of strict liability for failure to supervise comparable to that of the editor of an online journalistic publication, nor is it a form of vicarious liability based solely on status.

In the cases considered by the criminal courts, liability has instead been assessed under the ordinary rules on participation in a criminal offence. Failure to remove the content promptly after becoming aware of it may amount to a conscious endorsement of the message and may allow the offence to be disseminated further. It is therefore necessary to establish knowledge, awareness of the defamatory nature of the content and a voluntary decision to keep it online.

Article 595(3) of the Italian Criminal Code treats defamation committed through the press or through any other means of publicity as aggravated. The Italian Supreme Court has regarded blogs and social networks, where they are accessible to a significant number of users, as means capable of disseminating a message beyond a limited circle of recipients.

The leading criminal-law decisions

In judgment no. 12546 of 2019, the Fifth Criminal Division held that a blog operator may be criminally liable for aggravated defamation arising from content posted by third parties where, after becoming aware of its offensive nature, the operator fails to remove it promptly. The Court explained that such liability does not result from a legal duty to prevent the event or from the automatic application of the rules applicable to the editor of a publication. It arises instead from the conscious continuation of the dissemination of the defamatory content.

The same criterion was reaffirmed by the Fifth Criminal Division in judgment no. 45680 of 2022. In that case, the operator had left a seriously defamatory comment online and had added an annotation that was interpreted as endorsing the comment. The Court took into account both the operator’s knowledge of the message and the operator’s conduct, holding that knowingly keeping the comment online had allowed it to be disseminated further.

The case law has also attached importance to the operator’s overall conduct. In order no. 24818 of 2023, the Italian Supreme Court of Cassation held that, in addition to the absence of a general duty of prior monitoring, it is necessary to assess the context of the blog, the manner in which the content is presented and any impulse given by the operator to the publication of comments. The individual message must therefore not be examined in isolation: the operator’s conduct as a whole must be considered.

Criticism, opinion and defamation

The use of a polemical tone is not, by itself, sufficient to turn a comment into an unlawful act. Criticism may contain subjective assessments, including harsh and disputable ones, but it must remain connected to true facts and cannot amount to the gratuitous attribution of dishonourable conduct or false facts.

The Italian Supreme Court has held that freedom of expression must be balanced against the protection of reputation. The issue is particularly clear where the comment does not express an opinion but presents specific and harmful facts as true, although they do not correspond to reality.

This distinction is also important for anyone receiving a report. Not every unwelcome or severe comment is manifestly unlawful, and not every complaint requires immediate removal. The operator must assess the content in context, distinguishing among criticism, satire, information and the attribution of untrue defamatory facts. Where the unlawfulness is not manifest, it may be prudent to preserve the report, suspend dissemination if technically possible and obtain professional advice, especially in more complex cases.

Practical safeguards for professionals

Anyone operating a website, blog or social-media profile open to comments should adopt a simple, documented procedure proportionate to the size of the digital space.

It is advisable to:

• set clear rules for comments, prohibiting offensive, threatening, discriminatory or reputation-damaging content;

• provide an easily accessible address or form for submitting reports;

• ask the reporting person to identify the precise link to the content, the expressions being challenged and the reasons for the request;

• check interactions with reasonable regularity, without turning that practice into a general obligation of prior monitoring;

• record the date and time of the report, the content challenged and the decision taken;

• remove or disable access to manifestly unlawful content without undue delay;

• avoid sharing, “liking” or reposting the challenged comment, since such conduct may provide evidence of conscious endorsement of the message;

• retain, where necessary, a copy of the content and the report in compliance with data-protection legislation;

• distinguish cases of manifest unlawfulness from complaints concerning opinions, criticism or satire;

• establish internally who is authorised to handle reports and within what time frame.

Removal does not prevent the operator, where necessary, from retaining a copy of the content to document the report, protect the operator’s position or cooperate with the authorities. Removing the comment from the website does not mean that every record of the incident must be deleted, nor does it eliminate the need to consider requests for corrections, formal notices or judicial measures.

Professional-conduct implications for professional firms

For lawyers and other regulated professionals, the matter may also raise professional-conduct issues. However, a disciplinary violation does not automatically follow from the failure to remove every challenged comment.

The assessment must be made on a case-by-case basis, taking into account the professional’s actual role, the nature of the digital space, knowledge of the content, the clarity of the report, the time elapsed and the steps taken. The situation is different where a comment is automatically posted by a user and promptly removed after a specific report, as compared with a situation in which the professional knowingly leaves the content online and reinforces its dissemination through further interventions or sharing.

Conclusion

The most recent case law does not impose on professionals a comprehensive and preventive duty to review every comment. It does, however, establish that the absence of a general monitoring obligation does not amount to a licence to ignore reports received.

The balance can be stated as follows: an operator is not liable merely because a user has posted offensive content, but may be held liable when the operator knows that the content is manifestly unlawful, has a genuine ability to intervene and knowingly leaves it online, thereby allowing it to be disseminated further.

For professionals, the most effective preventive measure is therefore to adopt a simple, traceable and prompt reporting-and-removal procedure, while keeping the technical management of comments distinct from the legal assessment of genuinely disputed cases.

© Avv. Gabriele Lanzi