Prof. Avv. Roberto De Vita ‘s essay published within Eurispes‘ 36th Italy Report, which was presented on 05/24/2024 at the Conference Room of the National Central Library in Rome.
The most serious difficulties begin when a man
Is free to do whatever he wants.
T.H. Huxley
From uncertainty to perceived fragility, the dimension of individual disorientation becomes a systemic horizon in the century of conflict between “future threat” and retrotopic nostalgia.
The acceleration of social transformations brought about by the reversal of the relationship paradigm in the human-machine relationship triggers hardly predictable (but easily postulated) motions of anthropological change, the native manifestations of which are already visible.
And if this is the (dark) perimeter of the process of change, its (in)conscious systems of governance confront each other between severity and permissiveness as antipodes and scales of alchemical hope, between visions of order and discipline and visions of freedom and creativity. Dimensions sometimes in conflict, sometimes in continuity of maturation (embryonic in transformation), and sometimes in enlightened balance. From philosophical reflection to social inquiry, traversing individual introspection to the metasignificant of the normative rule, the apparent dichotomy becomes apparent in the primal and irrepressible chromosomal coexistence of individual and society.
Philosophical research, after wondering with human thought about the form of God, plunges with analogical thought into the depths of Artificial Intelligence. The creativity resulting from the freedom of scientific research is, by some, read as a risk to humankind’s very existence, almost in a dystopian vision of a digital Leviathan (Terminator and his Skynet), while by others it is seen as the only saving projection in the face of an unsustainable ratio of scarce natural resources to world population. And if the relationship between philosophy and technology has always been explored, contemporary themes increasingly radicalize the confrontation: on the one hand, the need for severity and order in the governance of technological transformations (with traits of concealed Luddism) and, on the other hand, the exaltation of the magnificent fates and progressives to which it is thought (with traits of fideistic reliance) that the “creative energy” of these prodigious machines for humanity will be able to lead.
Since it is uncertainty that (should) represent the philosopher’s method of research – the only true explorer in the universe of the superstructure of thought – the dichotomy between severity and permissiveness takes on the kaleidoscopic color of Kantian observation and does not force the assumption of risk from predictive fallibility and error: method prevails over merit, inquiry over result, magma, rather than fluid, in a vaporous state.
And this is despite the fact that the comparison may take on the reassuring classical tension between Plato’s collective ethical rigorism and the relevance of balance among (and of) individuals in Aristotle’s thought, in which a strict regulation of citizens’ lives (severity for order and justice) is preferred to reliance on moderation and individual common sense.
A kind of endless agon that cannot have winner or loser: the latter are concepts of terminal negation that cannot find hospice in post-prehistoric human formations, where the relationship between society and the individual can be rewritten or, rather, described in the epistemology of the relationship between severity and permissiveness.
The analysis shifts, then, to the functional, finalistic, moral, utilitarian meaning of the two concepts and no longer on their inevitable coexistence, to the declinations of efficient mixture, political recipe and normative dosimetry, always with an eye on the alchemy of the resulting social and economic.
And while the Saint of Hippo relies on the severity of divine law as the criterion of order and grace as the confirming exception for mortal limitations, Thomas Aquinas, with impetus as a sociologist and psychoanalyst ante litteram, places individual understanding and merciful consideration for those limitations within the fabric of natural moral law (weave rather than warp).
In Christian thought, the pursuit of the aforementioned blend investigates the inscrutable divine plan, seeking to grasp signs of the way, signals of the course, and situating outcomes, even the nefarious ones, as a consequence of God’s inescapable will and atonement for human imperfection. Medieval political society is thus guided by the alchemists of protective and curative poisons: doses of one (severity) or the other (permissiveness) protect, cure, kill or extinguish, progressively, dosimetry in the result collected by historiographers.
With the Enlightenment, the unfathomable and the unpredictable (often considered – and rightly so – legitimations of despotic power) are abandoned (in part), and the individual and his freedom take on value autonomy, albeit to be governed according to social and moral rules: these are no longer unfathomable, but must be sought in man himself and his consociative vocation. Rousseau writes the method for government and rules, while Mill, through the measurement of social welfare, looks at the happiness of individuals in society through the dual dimensions of pandering-efficient and outcome-tending.
Only with Friedrich Nietzsche, however, and then even more so with Sigismund Schlomo Freud, do permissiveness and severity become internalized until they become exaltation of the individual, as well as overcoming the limits of individuality, on the one hand, and categories of being and ought-to-be, on the other. It no longer investigates only the relationship and balance between society and individuals starting from the imperative of order, but seeks the projection–starting from the individual and in the individual–of freedom, creativity and inner conflict.
However, to noble introspections sociologists and political scientists prefer system macroanalysis, partly because the more society becomes structured, the more urgent the study of superstructures becomes. And because severity and permissiveness are reins of government, Michel Foucault analyzes the use of punitive practices to regulate behavior and concessions of spaces of freedom, or tolerance of rebellions to maintain social control. As the contrasting twentieth-century models of individual liberty and social justice gradually emerge, variants of different-intensity blends of one and the other, an inescapable Nozick and an ennobling Rawls.
The dominant question in the diachronic thinking of classical sociology is whether severity is innervated in the system of social rules as such, whether the concept of permissiveness is located outside the rules or within them, whether society is, as such, a manifestation of the inevitable suppression of a share of individual freedom; an analysis, however, that is no longer metalogical, but methodological, interested more in the consequences than in the premises, in the probability of the relationship between rule action and social resultant and even its measurability.
Durkheim’s “mechanical societies,” at the foundation of which there is a strong sharing of values and beliefs, have a consequent high level of conformity-severity to social rules. These are contrasted with “organic societies,” where diversity and balance among the diversity of individuals require a greater degree of permissiveness in social rules. Severity and permissiveness thus describe the very nature of consociation, that is, what its root is (identification versus coexistence), exalting the tension between communal cohesion and anomie: the latter concept, in its extreme, can be seen as the very negation of the communal dimension and thus a harbinger of social disintegration and negation of society as such. Again, as in the dimension of philosophical research, for sociologists the declination ultimately comes down to the virtuous dysfunctionality of the relationship between individual and society.
However, with Weber and Adorno, thought quickly turns to what enables (why and how) societies to determine adherence (compulsion) to social rules, seeking in the induced stratification of cultural patterns (even seemingly individualistic ones) the key to social control, an inescapable and necessary evil for some, a desirable viaticum of social justice through collective welfare, for others (Marx). Hence the apparent oxymoron of strict society in the permissive rule: here constraint and punishment are replaced by cultural homogenization and communal “religious” identification, sharing and belonging in Durkheim’s mechanical societies.
Organic society, that of balance and coexistence of diversity, thus appears to be only a passing phase, transeunte chrysalis or antiphrasis of permissiveness.
Society and individual, severity and permissiveness, social justice and individual freedom, security and liberty, punishment and forgiveness: (dichotomous?) declinations of coexistence. Philosophers, sociologists and economists investigate roots, cause and effect, method and measurement; jurists (dystopian rulers of the superstructure) offer tools. Be they those of inquisitorial torture, those of narcotic tolerance, those of laissez-faire, or those of Orwellian fascination. Ennobling intentions extremes act between the meta-legal (of the half-jurist and half-philosopher or sociologist) and the mechanistic formalism (of the magistrate to apply called), lacking their own foundations but “enlightened” by other reason, to the point of being (self-)servant, at once libertarian and paternalistic, capable of finding in calligraphy the justificatory root of racial laws and non-discrimination (Kiel School).
In contemporary society, jurists, convinced regulators of (co)existence, self-assert their axiom: those who write the norms, those who materially draft them, make themselves absolute exegetes of the first thought (the others, philosophers and sociologists, are beautiful souls); judges, called upon to enforce the form of the exegetical excerpt, are despots of harmony, between wrapping garments and shape-shifting bodies.
And when in the fortunate dimension of modern severities the concept of democracy is established as a merit and not a method, even wars have their basis in law (although reason would say otherwise). Since the philosopher investigates (at least seemingly) without boundaries or territories and the sociologist diffidently perscrutes every superstructure, legal thought is the one that is most apt to be enlisted first in the special wards of democracies, those in which the cultural regime governs coexistence and where cultural homogenization is preferred to severity, which deceives with phony permissiveness (typical Western), or those in which freedom to vote is transparent dress that shows the scars of dissent.
If then, as per the opener, the perimeter becomes murky, the portents project the dichotomy on structure and superstructure, where man and machine and their (inter)acting are the new individuals and society with its rules is yet to be investigated, even before it is vainly to be regulated.
And here, to make a contaminating leap into social pedagogy and with the aid of the parenting metaphor, think of the father’s bewilderment and paroxysm in the face of the digital native and his neurological as well as psychological change, where the plastic brain no longer has the structure of a book but that of a smartphone: what severity and what permissiveness (and what results will they produce), waiting for the terminal connection to the machine? Even more complex appears the educational balancing act in school, where one has by definition the responsibility not to abandon the last and at the same time to promote the whole, where rule education is the forerunner of social education, where the concept of free development of identity is associated, clandestinely, with normalized deviance.
Precisely at the stages of greatest revolutionary, destructive and creative transformation, where the decay of individual anomie leads to social disintegration and, likewise, to the reassertion of an individualism immersing itself in values of fundamentalist extremism, where diversity marks the boundary of belonging and not of the richness of coexistence, where fear makes hostile and forastic, severity must regulate coexistence and not identification, while permissiveness must be incentive of creative force, license for the deserving, consequence of deserved trust.
When inert observation is made of the deepening tolerance for conducts of intolerance to social rules, when unilateral claim for individual rights becomes denial of coexistence, the progressive habituation to irresponsibility is affirmed. Individual deviance becomes systemic, anomie rules in the logic of overwhelm.
Self-referentiality of rights, ideological opposition to duties, irresponsibility justified by individual discomfort or systemic faults.
The family as well as communities, schools as well as institutions, seduced by the prosperity of the post-ideological century, by the absence of organized conflict, gave way to the apparent freedom of primordial individuality, dismantling, because they were deemed archaic, the superstructures of coexistence, perceived as useless scaffolding and trusting (out of ignorant good faith) that regulatory spontaneism was (at all times) the very cement of society.
Consider the drift of parental authority, sharedly extended (in aesthetics and merit) to parental responsibility and dramatically sunk into the perils of youthful dissatisfaction among adults and suffering anarchy among minors. A childhood no longer denied by material need but by the emotional and educational neglect of bewildered and irresponsible parents forbidden to punish but not neglect.
Not different is the fate of the School, where bullying of students and their parents and resignation due to cultural and supportive poverty of teachers is true pedagogical and civic renunciation, where judging, punishing and rewarding have been forbidden because they are considered mortifying manifestations of the esprit de jeunesse.
Families and schools mature increasingly fragile and arrogant children, only to leave them prematurely to an even more agitated and gloomy social living (of which adults grasp very little). The dramatic numbers of new addictions of progressively younger minors, alcohol and narcotics, the numbers of the scars of battered sexuality, the explosion of serious psychological distress and the number of suicides among very young people, the increasing severity of juvenile crime are increasingly manifest symptoms of this.
A society where individuals feel more invisible and lonely and therefore are increasingly scribbled on their skin and accompanied by animated stuffed animals, unable to relate beyond the aesthetic exhibitionism of image posts and fear of relational emotional failure.
Conflict, which once-when it was between society (strictness) and individuals’ quest for freedom (permissiveness)-generated creative force, of civic and moral, economic and political innovation, has become internalized; it is no longer ideological class conflict, but has become individual suffering, lonely frustration. Individuals struggle to recognize each other, maintain mistrusts, belonging is only commercial and consumeristic or animated by hatred of the weak or different other (in fear of the mirror), and being becomes psychopathological because inner conflict breeds frustration and destruction.
Therefore, it should come as no surprise that over the past five years the dramatic number of young people (aged 15 to 34) who are not studying, not working and not in training (although declining slightly in the past year) continues to hover between two and three million.
At the same time, those who are committed see a gradual depletion of achievements in studies and employment level.
The engine of society is resigned and frightened, and, free from material need and the need to gain freedom and rights, it remains unmotivated and unmotivated.
Certainly these are not the only causes (always complex, deep and historical in the alibis of all ruling classes) of the existential drift of generations, but it is hard to doubt that the renunciation of educational severity, value rule, community obligation, and achievement rewards have done children and students any good.
At first it appeared as an ideological, value choice, overcoming patriarchal oppressiveness in the postwar Italian family and school, where severity was axiomatic. It seemed to have freed the educational method (society as a whole) from despotism and grafted (by movement of revolutionary aspiration) vital yeast, creative ferments, destined to combine freedom, spontaneity, individual and collective improvement.
Perhaps it has happened elsewhere, but certainly not in Italy where, the demolition of a superstructure has not been followed by improvement, if anything, abandonment. Abandonment first and foremost affective, parenting is responsibility and educational severity is primarily affective commitment, of presence, of listening, of confrontation, all activities incompatible with the youthfulness of adults in search of their gratification and with little time to be parents; therefore, better to delegate or doubt, better to justify, better to understand, better to forgive, better to let it go wrong and “let’s hope it gets by.” And if School acts stern and reminds us of our commitments to family and society then it is paternalistic and therefore wrong, while if students’ merit results do not satisfy and trigger tensions and depressions then better to reward everyone and “hope they get away with it.”
Severity is commitment; today its “overcoming” is no longer ideological or value-based, but an alibi for inadequate adults engaged in something else.
And it is the same sickness that consumes institutions in the face of a degeneration, not only generational but communal, of abusive and violent conduct, such as that chronicled in the daily chronicle of overwhelm.
But it is certainly not a simplistic appeal to orderly solutions, to old-fashioned severities, to the use of means of correction, to redemptive punishment, that is the saving viaticum. Because after the digital revolution, the “neurological” distance between the generations of young and old has increased sidereally, and an analog retrotopic jolt can hardly regulate freedom and responsibility in the ecosystem of digital humanity.
As we wait for traces of the direction of a new Pestalozzi, in his pedagogical vision for children and adults, for individuals, families and society, where before precepting one must explore the state of nature, the social state and the moral state, we collectively surrender ourselves to a new society, which before the complete digital metamorphosis will be the “frightened society.”
In case no. C-178/22, which originated from a reference for a preliminary ruling by the Court of Bolzano, the Court of Justice issued a significant decision regarding judicial authority access to telephone records of electronic communication service providers.
Under Italian law, this type of access is limited to specific crimes-which includes aggravated theft-provided there is authorization from a judge. The Court reiterated that authorized access must relate only to individuals who are suspected of having committed serious crimes, with the clarification that the definition of what constitutes a “serious crime” must in each case be identified by individual member states.
However, the Court has made it clear that the court responsible for authorization must have the power to deny or restrict such access if it determines that the injury to an individual’s fundamental rights-privacy and personal data protection-is excessive in the face of an offense considered manifestly not serious “in light of the social conditions existing in the member state concerned.”
After two reports of cell phone thefts, two criminal cases were registered with the Bolzano Public Prosecutor’s Office for aggravated theft under Articles 624 and 625 of the Criminal Code. In order to identify the perpetrators of the thefts, the prosecutor had requested permission from the Judge of Preliminary Investigation in Bolzano to acquire telephone records from telecommunications service providers. The requests included a wide range of data, including utilities, IMEI codes, websites visited, times and durations of communications, cell location data used, and the personal details of the utilities’ holders.
The heart of the issue raised by the Judge for Preliminary Investigation concerns the compliance of Article 132(3) of the Privacy Code[1] (governing the retention of traffic data for the detection and prosecution of crime) with Article 15(1) of Directive 2002/58/EC, as interpreted by the Court of Justice in its March 2, 2021, judgment, Prokuratuur[2].
The Italian legislation, in detail, allows access to phone records to prosecute crimes punishable by imprisonment of at least three years, a criterion that the referring judge feared could also include less serious crimes, such as cell phone theft, certainly not considered serious threats to public safety.
According to the Prokuratuur judgment, such data accesses are justifiable only if they are aimed at combating serious crimes, such as serious threats to state security, and should be proportional to the severity of the interference with fundamental rights, based on Articles 7, 8 and 11 of the Charter of Fundamental Rights of the European Union[3]. The Bolzano judge had thus expressed doubts about the wide discretion left to the Italian legislature and the risk of an overly broad application of this rule, in violation of the principle of proportionality.
Incidentally, the Court ruled on the admissibility of the question, which was contested by the Italian and Irish governments. In particular, they argued that the court’s request took on a hypothetical character, also asking about the compatibility of Article 15(1) of Directive 2002/58 with other less serious offenses other than those in the main proceedings.
However, case law[4] of the European Court has already ruled that requests by national courts for interpretation of EU law are generally considered relevant and admissible unless it is clear that the request has no connection with the facts of the case or the subject matter of the main proceedings, or that the problem is purely hypothetical. In addition, the Court has a duty to respond to questions raised when they concern the interpretation of Union law.
On the contrary, given that the court reproduced in full the wording of Article 132(3) of the Privacy Code in the preliminary ruling question, and given that this encompasses the offenses for which data access authorizations were requested in the present case, the court held that the question was not hypothetical in nature and was therefore admissible.
The Court considered to clarify in the introduction its power to intervene in preliminary reference cases. And in particular, he reiterated that he could not interpret the national legislation of individual member states or verify its compliance from EU law. In fact, under the Article 267 procedure, the Court can only interpret Union law within the limits of the Court’s jurisdiction.
And even if the question is improperly phrased, the Luxembourg courts can only identify the elements of Union law that require interpretation on the basis of the matter at hand, including by considering rules not considered by the national court.
With respect to the matter under discussion, a critical element in recent case law cited in the ruling is the need for data retention to be both limited and differentiated according to the severity of the crimes. Indeed, access to data should not be generalized or undifferentiated but must be specifically justified by legitimate and serious objectives, such as combating severe forms of crime or preventing serious threats to public safety.
Another relevant aspect, moreover, concerns the prior control of such access. National legislation, in the opinion of the decider, should provide for independent judicial or administrative supervision to ensure that any access to data is justified and limited to cases where it is strictly necessary. This control is essential to ensure that abuse does not occur and that access to data is made only when actually justified by circumstances that make it proportional and necessary.
The Court also made it clear that the seriousness of the interference is not mitigated by the short duration of the data collection period (two months in this case). In fact, the set of data collected is in every case capable of revealing significant details about the private lives of the individuals involved.
The ruling, then, specifies that it is irrelevant to the assessment of the severity of the interference with fundamental rights that the data accessed belonged not to the original owners of the phones but to the people who used them after the thefts. Directive 2002/58, in fact, requires confidentiality of electronic communications and traffic data regardless of the identity of the users; for these purposes, “user” is defined as any natural person who uses such services for private or commercial purposes, regardless of whether or not he or she subscribes to the service.
Finally, the question includes consideration of what crimes can be considered sufficiently serious to warrant interference with fundamental rights guaranteed by the Charter. The definition of “serious crimes” must reflect a balance between the need to combat crime and the need to protect the fundamental rights of individuals. Member states do have some discretion in defining these offenses-due in part to differences in social realities and legal traditions-but they must exercise it in a way that respects the principles of proportionality and necessity, without overextending the scope of access to personal data.
Also in light of the April 5, 2022, judgment, Commissioner of An Garda Síochána and Others,[5] the Court criticizes the Italian legislature’s choice to identify a particularly low edictal threshold for “serious offenses” such as that under Article 132 paragraph 3 Privacy Code.
The identification of such crimes in national law allows for very intrusive access to individuals’ communications; therefore, it should not be so broad as to make access to such data the rule rather than the exception. Consequently, it cannot encompass most of the crimes in the system, which is what happens with a threshold of imprisonment set at an excessively low level-as is the three-year threshold in the present case.
At the same time, a reading of the national legislation leads the Court to believe that even such a low threshold does not necessarily violate the principle of proportionality. Indeed, where the requested data do not allow precise conclusions to be drawn about the lives of the people to whom they belong, access may not constitute a serious interference deserving of protection.
However, at the same time, the national court must be able to deny or limit access whenever it finds that there is indeed serious interference in the face of a manifestly non-serious crime.
Therefore, in light of this reasoning, the Court established the following principle of law: “Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that it does not preclude a national provision which requires the national court – when intervening in a prior check following a reasoned request for access to a set of traffic data or location data capable of allowing precise conclusions to be drawn as to the privacy of the user of an electronic communications medium, stored by providers of electronic communications services, submitted by a competent national authority in the context of a criminal investigation – to authorize such access if the latter is requested for the purpose of the investigation of offences punishable under national law by a term of imprisonment of not less than a maximum of three years provided that there is sufficient evidence of such offences and that such data are relevant for the establishment of the facts, provided, however, that such court shall have the possibility of denying such access if the latter is requested in the context of an investigation concerning a manifestly non-serious offence, in the light of the social conditions existing in the Member State concerned.”
Avv. Antonio Laudisa
Avv. Marco Della Bruna
Download the Court’s ruling here.
[1] D. Lgs. 196 of June 30, 2003.
[3] Article 7 – Respect for private and family life.
“Everyone has the right to respect for his or her private and family life, home and communications.”
Article 8 – Personal data protection
“1.Everyone has the right to the protection of personal data concerning him or her.
Such data must be processed in accordance with the principle of fairness, for specified purposes, and on the basis of the data subject’s consent or other legitimate basis provided by law. Every person has the right to access and obtain rectification of the data collected about him or her.
Compliance with these rules is subject to monitoring by an independent authority.”
Article 11 – Freedom of Expression and Information
“1. Every person has the right to freedom of expression. This right includes freedom of opinion and freedom to receive or communicate information or ideas without interference by public authorities and without boundary limits.
2. The freedom of the media and their pluralism shall be respected.”
[4] Judgment of March 21, 2023, Mercedes-Benz Group (Liability of manufacturers of vehicles equipped with handling equipment), C-100/21, EU:C:2023:229, para. 52 and case law cited
On Friday, May 24, 2024, at 11 a.m., the Italy 2024 Report of the Eurispes Institute, now in its 36th edition, will be presented at the Conference Room of the National Central Library in Rome.
The 2024 Report will also contain an essay by Prof. Lawyer Roberto De Vita, Director of the Justice Department of Eurispes, on the dichotomy“Severity-Permissiveness, Declines of Coexistence.”
For accreditation and information: ufficiostampa@eurispes.eu
Fabio Manganaro, the Carabinieri marshal accused of blindfolding Gabriel Natale Hjorth, one of the Americans convicted for the murder of deputy brigadier Mario Cerciello Rega, was acquitted on appeal. The sentence was issued by the first appeal court of Rome as “the fact does not constitute a crime”. At first instance, Manganaro was sentenced to two months for the charge of harsh measures not permitted by law.
Marshal Manganaro was accused of a penalty measure not permitted by law for having blindfolded Hjorth in the barracks in via in Selci in Rome after the arrest of the two Americans for the murder of the deputy brigadier of the Carabinieri Mario Cerciello Rega, killed with eleven stab wounds in the night between 25 and 26 July 2019 in the center of the capital.
“This sentence must be read and when the reasons are there it will have to be explored in depth by the former Prime Minister, Giuseppe Conte and by the former commander of the Carabinieri, General Giovanni Nistri who were the first to condemn, without even examining it further and waiting for the results. proceedings, the work of a soldier who has honored the force in 25 years of service”. This is what the lawyer Roberto De Vita, defender of the carabiniere Fabio Manganaro, says. “This sentence re-establishes that trust in justice that had been lost with the conclusions of the prosecutor at first instance and with the sentence of the single judge”, added the defender, recalling the 2-month sentence imposed on his client at first instance.
“The fact does not constitute a crime.” With this formula, the appellate judges in Rome acquitted, overturning the first-degree verdict, the Carabinieri marshal Fabio Manganaro, who was accused of blindfolding Christian Natale Hjorth, one of the Americans charged with the murder of Deputy Brigadier Mario Cerciello Rega. In the first degree, Manganaro had been sentenced to two months for the accusation of a measure of rigor not allowed by law. The photo of the young American with his eyes blindfolded and his head bowed went around the world. The young man had been stopped and taken to the barracks in Via In Selci in the hours following the tragic attack on Cerciello Rega, who was killed with 11 stab wounds in a street of the Capital in July 2019, along with Finnegan Lee Elder. In the reasons for the first-degree sentence, the single judge stated that the measure adopted by the non-commissioned officer “is not expressly provided for by the law” and therefore represents “an absolute anomaly” on which “there can be no doubt whatsoever”. The court added that it “cannot quite understand the relationship between the blindfolding of an individual and the need to calm him down, considering that, unlike what happens with birds of prey when they are deprived of visual stimuli, a human being just attacked in that way should, on the contrary, become much more agitated not even being able to see if someone is preparing to strike him and from where the threat is coming (and after all, Manganaro also declared that he had covered his eyes… to disorient him).” The second-degree sentence, however, dismantles this accusatory structure. The defendant’s lawyer, Roberto De Vita, commented stating that this decision “restores that trust in justice that had been lost with the conclusions of the public prosecutor in the first degree and with the sentence of the single judge. On April 10th, meanwhile, the public prosecutor of the appellate court of the capital city asked for a sentence of 23 years and 9 months for Finnegan and 23 years for Hjorth, as part of the second appeal trial ordered by the Supreme Court. In particular, the supreme judges had annulled Elder’s sentence to 24 years with a referral on the aggravating circumstances and on the existence of the crime of resisting a public official. For Hjorth, who had been sentenced to 22 years, the annulment with referral concerns the accusation of complicity in murder.
Prof. Avv. Roberto De Vita participated today in the renewal of the memorandum of understanding between the Department of Public Security – Central Directorate of Criminal Police and Eurispes – Institute of Political, Economic and Social Studies, for the promotion of joint initiatives in crime analysis.
The agreement was signed by the Deputy Director General of Public Security Central Director of Criminal Police, Prefect Raffaele Grassi, and Eurispes President Prof. Gian Maria Fara.
The event was introduced by a greeting and presentation of the initiative by the Director of the Criminal Analysis Service, Senior Director of the State Police Dr. Stefano Delfini.
Dr. Claudio Capitini’s interview with Prof. Avv. Roberto De Vita for Vvox’s My Generation column, focusing on the issues of revenge porn and nonconsensual pornography and research “Come on, send me a picture.” Revenge porn and digital scars.
“Trial to violence”. With the requisitions of the Public Prosecutor’s students, the arguments of the Defenders students and, finally, the Judges Students Council Chamber, ended today the project of DEVITALAW at the Tasso High School.
40 hours between investigations, debate and discussions in which the younglings simulated two trials, one on a case of sexual assault and the other on a case of revenge porn.
The Firm thanks the Head of the School, the Professors and especially the students for the enthusiasm and the commitment shown throughout the project.
The TG Sardegna report on the lecture by Prof. Avv. Roberto De Vita, President of the Cybersecurity Observatory of Eurispes and Titular Professor of the subject “Security in new technologies” at the Guardia di Finanza School of Economic and Financial Police, entitled “Cybersecurity – Cybersecurity in Public Entities and Companies“, sponsored by Eurispes, the Autonomous Region of Sardinia and IISTCG “Don Gavino Pes.”
The lectio magistralis on “Hyperconnected Society: between Analog Vulnerabilities and Digital Innovations” addressed the challenges of cybersecurity in the public and private spheres, with a special focus on the issues of adapting the national and European cyber security system to ward off cyber abuses and threats.
Prof. Avv. Roberto De Vita, President of the Cybersecurity Observatory of Eurispes and Titular Professor of the subject “Security in new technologies” at the Economic and Financial Police School of the Guardia di Finanza, will give a lecture entitled “Cybersecurity – Cybersecurity in Public Entities and Companies“, sponsored by Eurispes, the Autonomous Region of Sardinia and IISTCG “Don Gavino Pes,” which will also be attended by Commanders and Officers of the Police Forces.
The keynote lecture on “Hyperconnected Society: between analog vulnerabilities and digital innovations” will address the challenges of cybersecurity in the public and private spheres, with a special focus on the issues of adapting the national and European cyber security system to ward off cyber abuses and threats.
Eurispes President Prof. Gian Maria Fara will open the proceedings, followed by greetings from the Mayor of Tempio Pausania, Gianni Addis.
Dr. Gerolamo Balata, Director and Secretary General of Eurispes Sardinia, will introduce and coordinate the proceedings.
Download the event poster and lectio magistralis cover page here.
Listen to Prof. Avv. Roberto De Vita ‘s interview on episode 84 of “Serpente Corallo Social Club,” on Radio24, by Marco Lo Conte, Mauro Meazza and Stefano Elli.
“Trial against Violence. On the occasion of March 8, International Women’s Day, the classroom simulation phase of the DEVITALAW project at Liceo Tasso will begin: cases focusing on the issues of gender-based violence, consent and revenge porn will be addressed.
Students will simulate a cross examination, playing the roles of the trial parties.
“Trial against violence”. DEVITALAW ‘s project seminar series with Liceo Tasso begins today: third-year students, trying their hand as protagonists in simulations of the criminal trial, will address the themes of violence, consent and revenge porn.
The classes will be supervised in each activity by the project tutors: prof. Avv. Roberto De Vita, Avv. Valentina Guerrisi, Avv. Antonio Laudisa, Avv. Giada Caprini and Avv. Marco Della Bruna.
Revenge porn has reached alarming proportions in recent years and appears to be growing steadily. News cases and studies that have analyzed the phenomenon highlight the risk of widespread exposure: no one is excluded, from adolescents to institutional representatives, through public figures and ordinary people. A global phenomenon that continues to demonstrate[1] how fragile identity can be in the digital ecosystem. Affected social users would be 1 in 8[2], with even higher rates in the case of minors. If we add to this the fact that 51 percent of victims contemplate the possibility of suicide, we realize the seriousness of the problem[3].
In Italy alone, there are estimated to be more than two million victims and 14 million Italian accounts have viewed online images that were uploaded or disseminated without consent[4].
On Telegram groups dedicated to the Italian public, moreover, Permesso Negato’s Permanent Observatory found the number of non-unique registered users to be 13,152,000 accounts[Ibid.] According to another study, 4 percent of Italians are reportedly victims of revenge porn and nearly 9 percent say they know at least one victim[5]. In addition, 1 in 6 Italians would produce intimate images or videos and half of these would share them with other people[6].
The shocking dimensions that have been achieved are also due to the remoting of interpersonal relationships that occurred as a result of the Covid-19 pandemic[7]. People have acquired new habits and communicative behaviors that are also reflected in the construction of intimate relationships; a change that is not fleeting and that, once the emergency is over, has been consolidated into new ways of expressing affectivity.
Revenge porn is part of a broader phenomenon, nonconsensual pornography (NCP), not necessarily related to “relationship revenge” and involving the digital sharing/broadcasting without the consent of the person portrayed of images of a sexual nature: images taken consensually or voluntarily in the course of sexual intercourse or a sexual act but intended to remain private or to be shared privately; images captured by hidden cameras; images taken from electronic devices; images taken in the course of sexual assault. To the “traditional” forms of a digitally enabled phenomenon must now also be added the original creation of pornographic material through the use of AI, depicting faces and likenesses of real and often easily identifiable people: the so-called deepfake. Although of recent and still limited expansion, the sub-phenomenon has within it all the devastating potential of accelerating the widespread usability of artificial intelligence, also challenging current international and national regulatory instruments that to date remain essentially confined to material from real and not artificial creation.
With respect to the general phenomenon of revenge porn, already the study by U.S. academics Danielle K. Citron and Mary Anne Franks in 2014 had highlighted disturbing data. Attracting attention is not only the numbers regarding the extent of the phenomenon, but especially the severity of the repercussions on the lives of the survivors, specifying from the outset that we will speak predominantly in the female of the victims, since, according to published studies, between 62%[8] and 90%[9] of the victims are women. According to that study, 50 percent of intimate photos came with first and last names and links to personal social profiles, 20 percent were posted along with email addresses or phone numbers[10].
The first time revenge porn began to be widely discussed was in 2014. The phenomenon had affected numerous Hollywood movie celebrities, including actresses Jennifer Lawrence and Kate Upton. Their phones had been hacked and, as an immediate consequence, their intimate contents had been spread on the network, to the detriment of their personal dignity and reputation. This event also had strong psychological repercussions on the victims.
It is necessary – in fact – to consider revenge porn by analyzing it in its complexity, as a phenomenon with implications not only legal, but above all psychological, social and cultural. The exposure it entails or can entail-when this is only threatened-has significant consequences for the lives and identity development of people who experience these traumas.
As seen, from a phenomenological point of view, the locution revenge porn does not pertain so much and only to the revenge of the partner who, after the termination of a relationship, decides to share with third parties, friends or web users, the images depicting what was their partner.
And in fact, very often, the agent’s goal is not revenge, nor is it a personal feeling: revenge porn is only one part of a broader set of injurious behaviors, brought back under the name of nonconsensual pornography (NCP). Whether revenge porn is directed at humiliating and harming the person caught in the images[11], the use of such a name may lead to semantic misunderstanding and at the same time not be representative of the entirety of the phenomenon. This is because the word revenge carries with it the implication that the recipient of revenge has-in some way-caused or instigated it by his or her own behavior. The NCP definition is more representative of the different forms of the phenomenon: dissemination of images of a sexual nature of individuals without their consent, excluding, therefore, commercial pornographic distribution[12].
There are numerous PCN sites, which encourage their users to upload intimate photos and videos of their ex-partners for revenge. It is also common for them to offer the service in the context of forums, where other users have the opportunity to post derogatory or vulgar comments about women in pictures. The first of these sites was created in 2010 by Hunter Moore. In just 3 months in 2011, it received 10,000 photo uploads. At the time, the FBI investigation focused on determining whether the material had been stolen. The conviction that followed was based on identity theft and unauthorized access to victims’ accounts[13]. In any case, many other nonconsensual pornography sites have since been created that have a large following[14].
Among the immediate consequences of exposing one’s intimate images to the public (precisely because they are often associated with identifying references) are sexual harassment and threats: anonymous strangers may send e-mails and messages threatening rape and other violence. Some have been told, “First I will rape you, then I will kill you.”[15].
The phenomenon is growing rapidly, not only because of the increasing ease of sharing and dissemination of images, but also because of the normalization of affective and sexual scouting through the creation and exchange of the material object of future violation-as in the case of sexting. To get an idea of how usual it is, especially among minors, to share sexually oriented content, we can cite a 2018 study conducted within the American Medical Association. It was estimated that out of 110,380 underage participants, 14.8% and 27.4%, respectively, had sent or received sext. Furthermore, the percentages of those who had forwarded one of these sexts without consent or had undergone such forwarding are 12% and 8.4%, respectively[16].
It has become infamous, in Canada, the case of Amanda Todd, a 15-year-old girl who in 2012 took her own life after a nude photo of herself was sent to her friends and schoolmates[17].
In many cases, the minors who sent in their photos were coerced or received strong pressure to do so. According to a recent study, girls and non-binary people would receive the most pressure (77.5% and 77.8%), followed by boys (68.4%)[18]. According to a survey conducted by the Massachusetts Aggression Reduction Center, moreover, most of the time these incidents occur in the context of close relationships[19].
Among younger people, the phenomenon of sextortion (from sex and extortion, the practice of forcing someone to do something, often sexual acts, by threatening to publish nude photos or sexual information[20]).
In a study conducted by Snap[21], nearly two-thirds of Generation Z respondents (ages 13-24) across all platforms and devices-not just Snapchat-said that they or friends were targeted in the mode of “catfishing“[22] or were hacked by criminals who stole explicit personal images or other private information. In both cases, the material obtained was used to extort money or other intimate content.
According to Thorn, the startup co-founded by Ashton Kutcher and Demi Moore, 1 in 4 victims experience episodes of sextortion as early as age 13. Almost half of the victims are threatened on a daily basis in order to extort new images, which feed this cycle of abuse[23].
Another study in 2019 highlighted how the numbers of minors involved is percentageally higher than the numbers of adults on the respective samples analyzed. It can easily be inferred that younger people, born with smartphones, are naturally more inclined to expose themselves through these tools. That study, published by Cyber Civil Rights Initiative, found that 8.02 percent reported having been victims of NCP, while 5.12 percent reported having disseminated the material, creating NCP. Most victims (about 70 percent), were subjected to the conduct of their current partner (31.15 percent) or a previous partner (39.75 percent). NCP perpetrators also stated the relationship they had with their victims: in most cases it was their partner (39.1%) orex-partner (24.36%), followed by friends and strangers[24]. Furthermore, according to another study published by Cyber Civil Rights Initiative during the Covid-19 emergency, pre-pandemic physical victimization proved to be a reliable predictor of sextortion incidents that occurred during the pandemic[25].
Another problematic aspect also lies in the lack of awareness-especially of minors-in the use of social channels, from the most innocuous TikTok to OnlyFans: there is a lack of perception that one can leave indelible marks on one’s digital image, negatively affecting all aspects of one’s life. Caution in sharing not only protects against potential exposure to sexual predators, but also against injury to one’s digital reputation.
According to recent analysis, for example, about 90 percent of employers use search engines and social media to gather information about candidates for jobs, and about 80 percent have turned down a candidate because of that same information. The most common reasons given are lifestyle concerns, inappropriate comments, and inappropriate photos and videos. Selectors do not ask the victims whether they posted the images to them or whether the images were uploaded against their will. Employers simply do not want to risk hiring people whose public image could have a negative influence on corporate reputation[26].
In Italy, too, according to similar research carried out by Adecco (“Work Trends Study” 2019/2021), recruiting activity is mainly carried out online, and in particular, 43.8 percent of it on social media (so-called social recruiting). 44.1 percent of recruiters happened to exclude a candidate after viewing his or her social profiles, especially in the case of discovering inappropriate photographs.
Several studies have highlighted the heavy mental health consequences for victims: post-traumatic stress syndrome, anxiety and depression, humiliation, problems having intimate relationships, loss of self-esteem and self-confidence. The described symptoms are often accompanied by the presence of so-called coping, or coping strategies, denial or avoidance mechanisms with respect to the NCP event. These are all negative consequences that are also normally found in survivors of rape and other types of sexual assault[27].
According to psychiatrists Mudasir Kamal and William J. Newman, the effects on the psyche are anger, guilt, paranoia, depression, and suicidal instincts. From here, personal relationships can quickly deteriorate, leading to isolation. The long-term consequences on victims of revenge porn are similar to those found in victims of child pornography: humiliation and a sense of helplessness[28].
It is very clear that a phenomenon of this magnitude and severity needs to receive a regulatory framework to deal with it, both by ensuring protection and assistance to victims and by sanctioning perpetrators and supporting the prevention contrast and the activation of timely safeguards to prevent or contain the dissemination of images.
At the international level, national regulations have fitted into the framework of existing conventions, most notably the “Convention (UN) on the Elimination of All Forms of Discrimination against Women” of 1979 and the “Council of Europe Convention on preventing and combating violence against women and domestic violencea” of 2011 (the so-called Istanbul Convention). When they were signed, however, no thought was given to the new violence, carried out through means barely imaginable at the time.
The Philippines was among the first states to introduce specific regulations against revenge porn, with the“Anti-Photo and Video Voyeurism Act of 2009” [Under this act, conduct involving a series of photos or videos of a sexual nature that were taken without the consent of the person involved and under circumstances in which that person has a reasonable expectation of privacy is punishable. Thus, material filming, copying or reproduction, sale or distribution, publication or dissemination, display or exhibition, as well as having facilitated the preceding conduct are punishable] due to the early and wide spread of the phenomenon in the country, with sentences of up to seven years in prison. However, it was soon realized that merely responding in terms of sanctions was not an effective safeguard.
The real challenge, in fact, is to have the ability to intervene preemptively or, at least, promptly, trying to prevent the breach from causing the ongoing and permanent damage that characterizes releases of personal material.
The United States represents the most advanced legislative laboratory on the subject. In fact, currently 48 states, joined by the District of Columbia, Guam and Puerto Rico, have introduced specific legislation to punish NCP conduct. Penalties vary widely, from cases where up to one year in prison is provided, to those where the most serious offense can result in up to ten years in prison[29].
Proving that anyone can be affected, there is the case of Texan Joe Barton, a U.S. congressman, whose image was harmed by an unauthorized broadcast in 2017. The Republican politician had sent an intimate photo to a woman with whom he was in a relationship, only to find himself exposed all over social media[30].
In a paper prepared for the U.S. Department of Justice, analyst Samantha Brunick considered the difficulties faced by the private individual who becomes the victim of such an assault. For people who don’t know how to take action, he recommends turning to associations in the U.S. that provide free legal aid for victims, such as The Cyber Civil Rights Legal Project[31].
Cases involving minors and sexual extortion, in the FBI’s experience, are the most devastating on victims’ lives. “Oncethe criminal gets hold of the image, that child’s life is turned upside down,” argues Special Agent Ryan Barrett[32].
However, the absence of a federal revenge porn law is being criticized, not least because legislation would be needed to deal with the new related phenomena, such as the use of AI deep fakes for image creation. In fact, Rebecca Delfino of Loyola Law School has proposed a possible draft of a “Pornographic Deepfake Criminalization Act,” structuring a series of extra-legal support tools that could accompany the legislation, from awareness-raising interventions to technological responses to the phenomenon[33].
In England and Wales, revenge porn has been an offence since 2015: prison sentences of up to two years are available[34]. In Scotland, by contrast, the regulations introduced in 2016 allow for penalties of up to five years in prison[35].
A hotline, Revenge Porn Helpline, was established in the United Kingdom in 2015. In the early days it received between 50 and 60 reports per month. In 2022, it received 923 phone calls, and the chatbot introduced in February that year was activated 5826 times[36].
Specific regulations on revenge porn were introduced in Italy in 2019. Within the so-called Red Code[37], in force since 09.08.2019,Article 612 – ter of the Criminal Code, “Unlawful dissemination of sexually explicit images or videos,” has been included. This offense punishes the conduct of anyone who, after making or taking sexually explicit images or videos intended to remain private, sends, delivers, assigns, publishes or disseminates them without the consent of the persons depicted. Any person who has received or otherwise acquired the same images or videos and makes the same use of them for the purpose of causing harm to the persons depicted shall also be punished. The penalty is imprisonment of one to six years and a fine of 5,000 to 15,000 euros. In addition, aggravating factors are provided for the commission by persons related or already related by emotional relationship to the victim, by telematic means or to the detriment of a person in a condition of physical or mental inferiority or to the detriment of a pregnant woman. Except in the latter case, it is a crime prosecutable on complaint by the offended person.
Since the introduction, several sentences have made headlines, such as that of the Sulmona District Court, which in 2023 sentenced a 22-year-old man to one year and four months’ imprisonment for disseminating and then removing after a few minutes nude images of his ex-girlfriend[38].
Total court cases, as of September 2023, were already 4821, in 69% of which the victims were female and 17% were minors[39].
In a case of particular interest, the Supreme Court recently had occasion to address some hitherto dubious issues in the case law of the merits[40].
First, the court held that the crime is consummated with the first sending of the images, even if directed to a single person, regardless of whether-as in the case at hand-it was directed to a family member of the victim, who was not interested in feeding subsequent disseminations. In fact, the provision “makes no issue of the reiteration of the diffusive conduct, nor does it ‘quantify’ or qualify in any way the harmful diffusion of the protected good“; and with respect to the latter, the Court emphasizes the protection guaranteed by the rule to the victim’s sexual self-determination[41].
In addition, the Court confronted the purpose of harm that characterizes further disseminations (in which it also includes those who received the material directly from the victim), confirming the problematic interpretative direction that identifies the subjective element in specific intent, determined by an incomplete normative provision. And in fact, Art. 612 ter paragraph 2 of the Criminal Code, in punishing further dissemination, requires that it be done with the purpose of causing harm to the portrayed subjects, and this is likely so as not to generalize the punishability of the revenge porn unaware (the case of the person who receives material whose criminal origin he has no basis for deriving and then disseminates it in turn). The legislature, using a perimeter of punishability not on the material element, but on the subjective element of the norm (sub specie specific intent) has, however, effectively created a gray area of non-punishability for those individuals who, while aware that they have received material originating from NCP, disseminate it without any purpose of specific harm to the subjects filmed. In the latter case, according to current Supreme Court guidance, it would not be possible to derive specific intent from mere awareness of the non-consensual origin of the pornographic material.
Finally, what is to be understood by “sexually explicit” images is clarified. In particular, the Court concludes that “For the purposes of the crime under Art. 612 ter of the Criminal Code, the unlawful dissemination of sexually explicit content may have as its subject matter images or videos depicting sexual acts or genital organs or even other erogenous parts of the human body, such as breasts or buttocks, nude or in conditions and context such as to evoke sexuality“.
It remains, however, doubtful and problematic whether the rule can also be applied to cases of the production of verisimilitude (but not true) images via AI deepfake, without having to resort residually to other cases. In light of the extensive and growing use of the instrument, the jurisprudence will probably soon have to confront this interpretive dilemma as well; unless, as proposed in other jurisdictions, they plan to intervene soon with the introduction of an additional and specific case.
Also decisive for the enactment of specific sanctioning regulations were, in Italy, the cases concerning first Tiziana Cantone, then Congresswoman Giulia Sarti. The former in particular highlighted a serious systemic flaw in the approach to protecting the victim, whose intimate videos had spread considerably on social media and the webingeneral, so much so that it led to the woman’s suicide more than a year after the complaint.
In Italy, too, the most recent debate has gradually focused not only on strictly sanctioning aspects but also on those related to the protection of offended persons and the need for preventive and timely intervention for potential victims. Still, in fact, one in three victims think that such conduct does not constitute a crime in our country[42].
From a technical point of view, the reaction aimed at preventing or limiting the dissemination of the images must start with an immediate denunciation that allows the activation of the police force and the ability of the latter to interact internally with specialized departments, such as the Communications Police. In fact, specialized technical activity is needed in a police and judicial intervention context.
In the case of WhatsApp or Telegram, it is possible for law enforcement to identify duplicate content and use various techniques to neutralize it (in a peer-to-peer network it is necessary, for example, to identify points of disclosure). Consider that there are currently hundreds of chats on Telegram dedicated exclusively to the exchange of NCP material (and growing all the time)[43].
You do not work at the beginning to curb the content, but to rebuild the ramification of the shares. There are tools that can understand how the communication occurred and can identify the devices at either end of the communication with considerable effectiveness. In fact, common messaging systems are end-to-end networks, thus without dubious or anonymous exchange points. It may be difficult, because of the principles of cryptography on which they are based, to know with certainty what has been disclosed; however, it is easy to ascertain whether communication has taken place and between whom. Each message has a sender and a recipient, whether it is a single address or a group. Each recipient of content can become a sender, and through this relationship branching can be reconstructed. It is also possible to damage the content originally shared; in fact, what we normally forward is not saved on our device, but on the first sender device.
If the disclosure takes place on the Web, the matter changes, since the aforementioned element of easy tracking of the content’s path is lacking. However, uploading a piece of content to a social network such as Facebookmakes easy and certain removal possible. However, one should not confuse simple reporting to the site with a true active removal operation, for which highly specialized personnel are needed.
As you can imagine, there remains the problem of already downloaded content. It is complicated, because of the difficult tracking of content, that a user can be prevented from downloading a file, wait some time, and share it again. It must be borne in mind, however, that because of the enormous mass of data we are inundated with on a daily basis, the commonly adopted model is one of content acceptance but not retention (file saving). In the most egregious cases of dissemination of intimate images, rescue tends to occur when the incident has become newsworthy.
Regarding the issue of law enforcement training, it is necessary for those receiving the complaint to be able to understand that often it is not the image as such that is the problem. In fact, images are frequently disseminated that are the result of legal filming because they are made by consenting persons of legal age and sometimes even initially exchanged consensually. It is therefore necessary to set aside the legal aspect of the origin of the image (or the first sharing) and focus on the illicit subsequent dissemination and technical aspects of it, as well as the psychological impact of the act on the person portrayed. If following a complaint we are limited to a report to Facebook or Instagram, for example, we are taking an ineffective approach, not for lack of means, but for lack of knowledge of the phenomenon.
Even in cases of sextortion, action can be taken to neutralize the threat in a short time. Also, if you are in possession of the images with which you are being blackmailed, you can track them down and delete them. Moreover, by collaborating with platforms such as YouTube or those under Meta, it is possible to provide the images; thus, by already knowing the footprint of the file, they are able to prevent its publication before it even happens.
In addition, from 2021, Art. 144 bis in the Privacy Code, which provides for the possibility of making reports or complaints to the Privacy Authority for individuals who have a well-founded concern that their explicit images have been disseminated without consent. If the Authority considers the report to be well-founded, it shall take a measure within 48 hours to prevent the dissemination of the material and forward it to the digital platforms. To this end, the Authority has activated a dedicated platform on its website[44] which, however, given its recent introduction, still does not allow to measure the effective prevention and implementation capacity of early response.
Since the activation of the service, measures and referrals have increased by leaps and bounds: in the first eleven months of 2023, there were 264 interventions by the Authority compared to 51 in 2022; referrals, on the other hand, more than tripled from one year to the next[45].
As mentioned at the outset of this reflection, minors are the most exposed and vulnerable victims. There are several studies that have pointed out, even recently, that more and more images are being shared privately between minors themselves and then disseminated without their consent, through images stolen from younger children or extorted through sextortion, fueling a so-called “self-produced” child pornography market[46].
It seems necessary to raise awareness among teens and parents about the first mode of defense against predators: protecting sexual identity in the digital sphere. A neutral, sometimes superficial, approach to publishing and sharing various forms of nudity, one’s own or one’s children’s, is now common. Lowering one’s defenses about what one shares publicly, moreover, only makes one even more vulnerable and casual in the exchanges that take place in the (supposedly) private sphere.
As highlighted, very often sextortion incidents originate from material produced in a serene condition by the victims themselves, perhaps intended for one or a select few people, or even for storage only on their own device.
Minors, digital natives, learn – even before they can read and write – how to relate through electronic devices within the digital ecosystem: their entire relationship life is progressively structured through social networks and constructed through image sharing. Therefore, from the onset of sexual interest and their sexual affectivity, the net is the natural landing place and social media the extended relationship context.
Sharing images of one’s body and sexuality with friends or partners, therefore, has become the widespread norm of discovery and fostering, regardless of the social background or geographic origin of the children[47].
This explains the numbers of the spread of the phenomenon of non-consensual child pornography and the difficulty of basing prevention solely on generic reporting of dangerousness of the network. When the actual occurrences then take place, minors also find it more difficult to seek and find help. Quite often, as in cases of cyberbullying, they tend to isolate themselves and hide the problem, delaying the activation of support and technical containment of the spread, which is instead always possible. It is no coincidence that in many countries there are active campaigns in schools aimed at effective education of minors in responsible digital behavior and to inform them how to defend themselves, react and stop the sextortion (also widespread among minors themselves) and that in most advanced democratic countries there are active hotlines dedicated to minors specifically concerning the phenomenon of revenge porn.
Prof. Avv. Roberto De Vita
Avv. Giada Caprini
Avv. Marco Della Bruna
[1] Compared to previous insights, in fact, the phenomenon has continued to grow: R. De Vita, M. Della Bruna, Non Consensual Pornography: from revenge porn to sexual extortion., Eurispes Cyber Security Observatory, 12/17/2019.
[2] https://cybercivilrights.org/2017-research-infographic/
[3] www.cybercivilrights.org/wp-content/uploads/2014/12/RPStatistics.pdf
[4] https://www.permessonegato.it/doc/PermessoNegato_StateofRevenge_2022.pdf
[5] https://www.permessonegato.it/doc/PermessoNegato_Ricerca_Revenge_2022.pdf
[6] The Fool, “Revenge Porn Research“.
[7] V.C. Cordeiro, Prevalence and impact of cyber sextortion on teenage boys, Humanium, 21.11.2023.
[8] www.cybercivilrights.org/wp-content/uploads/2014/12/RPStatistics.pdf
[10] D.K. Citron, M.A. Franks, Criminalizing Revenge Porn, 9 Wake Forest Law Review 345, 2014
[13] D. Tolentino, FBI investigation into Is Anyone Up? shows legal limitations in revenge porn cases, 16.10.2018.
[14] S. Bates, Revenge porn and mental health: A qualitative analysis of the mental health effects of revenge porn on female survivors, Feminist Criminology, Vol. 12(1) 22-42, 2017.
[15] D.K. Citron, Hate Crimes in Cyberspace, Harvard University Press, 05.09.2016.
[16] S. Madigan, A. Ly, C. L. Rash et al, Prevalence of Multiple Forms of Sexting Behavior Among youth, JAMA Pediatr., 2018
[17] www.bbc.co.uk/newsbeat/article/19960162/amanda-todd-memorial-for-teenage-cyberbullying-victim
[18] Parts K, Sanders CE, Englander EK. Sexting at an Early Age: Patterns and Poor Health-Related Consequences of Pressured Sexting in Middle and High School. J Sch Health. 2023 Jan;93(1):73-81. doi: 10.1111/josh.13258. Epub 2022 Oct 17. PMID: 36251455; PMCID: PMC10092123.
[19] E. Englander, Coerced Sexting and Revenge Porn Among Teens, Bullying, Teen Aggression and Social Media. March/April. 19-21
[20] https://dictionary.cambridge.org/dictionary/english/sextortion
[21] https://www.weprotect.org/blog/two-thirds-of-gen-z-targeted-for-online-sextortion-new-snap-research/
[22] The practice of pretending on social media to be someone different in order to deceive or attract another person, https://dictionary.cambridge.org/dictionary/english/catfishing#google_vignette
[23] www.thorn.org/sextortion/
[24] Y. Ruvalcaba, A. A. Eaton, Nonconsensual Pornography among U.S Adults: A Sexual Scripts Framework on Victimization, Perpetration, and Health Correlates for Women and Men, Psychology of Violence, 10(1), 68-78.
[25] https://cybercivilrights.org/wp-content/uploads/2022/05/COVID-and-Sextortion-Eaton-2022.pdf
[26] K. Coleman, 52 Online Reputation Statistics for 2023, Status Labs; Online Reputation in a Connected World., JOB-HUNT 1, 3, 8 (Jan. 2010); S. Bond, A messy digital footprint can cost you a job, Financial Times, 12.10.2018.
[27] Murça A, Cunha O, Almeida TC. Prevalence and Impact of Revenge Pornography on a Sample of Portuguese Women. Sex Cult. 2023 Jun 3:1-17. doi: 10.1007/s12119-023-10100-3. Epub ahead of print. PMID: 37360017; PMCID: PMC10239214; S. Bates, Revenge porn and mental health: A qualitative analysis of the mental health effects of revenge porn on female survivors, cit.; R. Campbell, E. Dworkin, G. Cabral, An Ecological Model of the Impact of Sexual Assault On Women’s Mental health, Sage Publications, 2009
[28] M. Kamal, W. J. Newman, Revenge Pornography: Mental Health Implications And Related Legislation, Journal of the American Academy of Psychiatry and the Law, 44 (3) 359, 367, 2016.
[29] www.cybercivilrights.org/revenge-porn-laws/
[30] A. Bernstein, Is Republican Congressman Joe Barton A Victim Of Revenge Porn?, Newsweek/Reuters, 11/22/2017.
[31] S. Brunch, Revenge Porn: Can Victims Get Images Off the Internet?, in Cyber Misbehavior, May 2016 Volume 64 Number 3.
[32] FBI, FBI Launches Sextortion Awareness Campaign in Schools, 03.09.2019.
[33] R.A. Delfino, Pornographic Deepfakes: The Case for Federal Criminalization of Revenge Porn’s Next Tragic Act, Fordham Law Review, Vol. 88 issue 3, 2019.
[34] Criminal Justice and Courts Act 2015.
[35] Abusive Behaviour and Sexual Harm (Scotland) Act 2016.
[36] https://revengepornhelpline.org.uk/assets/documents/rph-report-2022.pdf?_=1681885542
[37] L. July 19, 2019, no. 69: Amendments to the Criminal Code, Code of Criminal Procedure, and other provisions on the protection of victims of domestic and gender-based violence
[38] P. Iavarone, She leaves him, he posts video of ex naked then deletes it after a few minutes. Convicted the same, 24.11.2023.
[39] Ministry of the Interior, Department of Public Security, Central Directorate of Criminal Police, The Point. Prejudice and violence against women, December 2023.
[40] Cass. pen. sec. V, sent. no. 14927 (hearing Feb. 22, 2023, dep. April 7, 2023), rel. Brancaccio.
[41] This passage stimulated the observation that even just showing the images, without actual divestment, would be enough to affect the victim’s self-determination: https://www.sistemapenale.it/it/scheda/caletti-la-prima-pronuncia-di-legittimita-sullart-612-ter-cp#_ftnref26
[42] https://www.permessonegato.it/doc/PermessoNegato_Ricerca_Revenge_2022.pdf
[43] https://www.permessonegato.it/doc/PermessoNegato_StateofRevenge_2022.pdf
[44] https://servizi.gpdp.it/diritti/s/revenge-porn-scelta-auth; https://www.garanteprivacy.it/home/docweb/-/docweb-display/docweb/9811771
[45] B.L. Mazzei, Revenge porn, stops decided by the Guarantor quintupled in 2023, 21.12.2023.
[46] Quayle, E. Self-produced images, sexting, coercion and children’s rights. ERA Forum 23, 237-251 (2022). https://doi.org/10.1007/s12027-022-00714-9.
[47] Internet Watch Foundation, Hotline reports ‘shocking’ rise in the sextortion of boys, 09/18/2023.
Prof. Avv. Roberto De Vita will deliver a lecture today for the International Residential Course “Investigative Activities for the Economic-Financial Combating of International Organized Crime” for the benefit of no. 32 Police Officers and Officers from Organization of American States (OAS) Member Countries,” at the Guardia di Finanza Economic and Financial Police School.
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