On 12 December 2019 a civil court in Rome ruled in favour of CasaPound Italy (CPI) against Facebook’s decision to close the far-right party’s profile in September and ordered the social network to reopen it with immediate effect and pay the group €800 for each day the account has been closed.

CPI is an extreme-right political party which is unabashed about its admiration for Mussolini and his nationalist social policies.

Before the appeal’s ruling, a Facebook spokesperson told the Ansa news agency that

“persons or organisations that spread hatred or attack others on the basis of who they are will not have a place on Facebook and Instagram. The accounts we removed violate this policy and will no longer be present on Facebook or Instagram.”

One of the reasons given in the judgement was that Facebook’s decision was contrary to CPI’s right of freedom of expression, and that it was contrary to the right to political pluralism (Art. 49 Cost.), eliminating or strongly compressing the possibility for association to express its political messages. The judge further explained that CPI would be deprived of its political representation as politicians from different parties use their Facebook’s accounts daily to express political messages and to spread their parties’ political ideologies and that Facebook has to conform with the principles of the Constitution.

The judge also affirmed that he could not establish a breach of Facebook’s Terms of Service and Community Standards – on the basis that CPI is not an individual and would use its page to communicate their messages to their followers, given that they are a legitimate political party operating in Italy since 2009.

The decision was not based on the balancing act between freedom of expression and hate speech, but on removing content from Facebook versus protecting pluralism and not tolerating censorship.

Despite the reasons for this judgement, which has been received with mixed emotions, the debate on hate speech in Italy has however already been the subject of a 2018 Country Report by the organisation Article 19, which highlights that despite robust protection of both the right to freedom of expression and equality in Italian law, the existing legal framework on ‘hate speech’ does not fully comply with international human rights standards. From the report it also emerged how right-wing parties and xenophobic movements have further fuelled hostility towards ethnic, national, and religious minorities in order to gain political support.

In May 2016, the President of the Chamber of Deputies of the Italian Parliament, Laura Boldrini, launched a Special Parliamentary Committee on Intolerance, Xenophobia, Racism and Hate to gather data, take evidence from experts and stakeholders, and formulate concrete proposals to counter the phenomenon. In  2017, Ms Boldrini wrote an ‘open letter’ to Facebook CEO, Mark Zuckerberg, calling on Facebook and social media platforms in general to be more effective and timely in monitoring their platforms and removing content clearly inciting hatred or violence.

Despite the fact Facebook’s proceedings are still ongoing (as Facebook plans its next move) and that the issue debated is censorship and the respect of political pluralism, this is also a clear example of how difficult it is to unravel the dilemma of the balancing act between freedom of expression and protecting equality.

On one hand social media are asked to take responsibility and actions against the spreading of hate speech against race, ethnicity, national origin, religious affiliation, sexual orientation, caste, sex, gender, gender identity and serious disease or disability. On the other hand it is difficult to do so without violating the freedom of expression of certain groups and individuals.

In 2016, Facebook, Microsoft, Twitter and YouTube subscribed together with the European Commission and EU Member States to a commitment to tackle illegal hate speech online and in the code defines illegal hate speech as “all conduct publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin.”

Is registering as a political party a way to legalise hate speech?

This case raises eyebrows for various reasons and amongst them there is the undermining of Facebook’s administrators’ freedom to evaluate what constitutes a breach of their internal policies which everyone subscribes to when registering with the social media site.

It is becoming increasingly unclear where the line between the legitimate defence of freedom of speech needs to be drawn. Though Casapound has a fundamental right to seek remedies through the courts, if we choose to put our trust into social media providers to ensure that all users are protected through their policies, they need to be able to carry out their vetting work when they believe it to be necessary, and they also need to be told to reverse those decision when they are injust or public confidence (already fragile) will be lost.

Nataly Tedone is a media and entertainment paralegal.