Hate is always wrong and even on WhatsApp status it can cost you dearly


The story behind this article – the sentence imposed by a German judge on a user for publishing illegal content instigating racial hatred in the state of WhatsApp – touches on a broader and more delicate issue such as that of hate speech, which represents a plague exaggeratedly amplified by the modern hyper-connected society.

Many (too many) users pour hateful speeches on the Net in the – erroneous – belief that they enjoy a sort of impunity “in real life”, but events such as the one we are talking about today must serve as a warning.

The status of WhatsApp is private but not too much: watch what you publish

Broadly speaking it can be said that the shared content on the status of Whatsapp they are not public, since they are visible only and exclusively by the user’s contacts. However, there is another factor to take into account: as the number of contacts saved increases, so does the number of potential viewers. It follows that the same contents are not not even exactly privateindeed the users who publish them can even be called to answer.

An example of this comes from a recent one German legal affairwhich demonstrates how the spread of propaganda on WhatsApp can be hate speech. The Frankfurt District Court sentenced a 41-year-old individual to pay one fine of 750 euros for having uploaded a video containing the swastika symbol and a speech by Adolf Hitler steeped in anti-Semitic hatred in their WhatsApp status. During the trial in January, the man defended himself by saying that he posted the video without paying attention to it and did not think any of those things. According to the sentence, in 2019 the man had uploaded a video lasting 80 seconds to his WhatsApp status containing speeches and symbols praising Nazism (swastika, images, texts and so on).

As is known, the statuses remain visible for 24 hours from the user’s WhatsApp contacts. In the present case, the judge classified this publication as “distribution“, Since the accused had 229 contacts saved at the time of the fact: in the face of such a large number of people, it is no longer possible to assume a possibility of verification by the sender. The court estimated that at least 75 contacts had viewed the video in the 24 hours it was available and one of the 41-year-old’s contacts, although not a close acquaintance of the accused, had reported it. Precisely this aspect – the lack of a personal relationship – demonstrates, according to what was established by the court, how the diffusion of the video had gone beyond the circle of acquaintances, integrating a real distribution, in which it detects the knowability and not the actual knowledge (ie the success of the disclosure). The offense provides for a prison sentence of up to three years, however the court was lenient because the accused had confessed and at the time of the hearing two years had elapsed from the fact constituting the crime. The decision, it must be said, is not yet final.

In Italy: what our legal system provides

As regards the Italian legal system, the reference legislation must be identified in thearticle 604-bis of the Criminal Codetitled “Propaganda and incitement to crime on the grounds of racial, ethnic and religious discrimination“.

The Court of Cassation intervened on this point with a recent sentence (Criminal Cassation, Section I, judgment of 9 February 2022no. 4534) with which he recognized a serious indication of guilt of the crime of incitement to racial hatred in the likes of anti-Semitic posts published on social networks “not of a private nature” such as Facebook, VKontacte and WhatsApp. For more details, the text of the sentence is available at this link.

The best way to conclude this speech is to rely on the always true and current words of Rita Levi-Montalcini:

There are no races, men’s brains are the same. There are racists. They must be overcome with the weapons of wisdom“.

You may also be interested in: our WhatsApp guides

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