Italian journalist not investigated but wire-tapped then sued. His doubts were legitimate

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The magistrate had asked for € 80,000 for damages, but now he has to pay legal fees. Telephone data on Enrico Barbetti ,reporter of the daily “Il Resto del Carlino”

OSSIGENO 3^rd June 2021 – With a first degree sentence of the 6^th May 2021, judge Martina Marinangeli of the court of Ancona rejected the summons from the former deputy prosecutor of Bologna, Valter Giovannini for damages, against the journalist of the Resto del Carlino Enrico Barbetti, accused of libel and slander. The former magistrate was also sentenced to pay legal fees of over six thousand euros. Enrico Barbetti told Ossigeno that he was satisfied with the ruling and that he prefers not to make further comments.

The civil trial initiated with the request for 80 thousand euro of damages that the magistrate, now retired, demanded from the reporter as compensation, having considered his statements harmful in a complaint presented in December 2017. During the trial  Barbetti, of whom Ossigeno has reported on other occasions (read here and here) had asked to clarify whether the acquisition by the former prosecutor of his telephone records and those of other reporters as part of an investigation into which neither he nor the others were under investigation, nor in contact with suspects, was legitimate.

THE DEFENCE – In December 2017 Enrico Barbetti, assisted by the lawyers of the Emilia Romagna Press Association,  Alberto Piccinini and Mara Congeduti together with their colleague Mauro Buontempi from Ancona, addressed the Minister of Justice, the Attorney General of the Cassation CSM, to the Attorney General of the Court of Appeal and to the Public Prosecutor of Ancona (competent on cases involving Bolognese magistrates) asking to shed light on the legitimacy of Giovannini’s actions who, as part of an investigation, had acquired Barbetti’s  telephone records and those of other journalists without their being investigated or involved.

The result was a procedural action against the magistrate, subsequently dismissed, who explained that he had acted for the purpose of “identifying the sources of information, in order to better reconstruct some outline of the complex investigation“. 

The acquisition of the printouts had already emerged in October 2017 (see here), reported in the press and the Emilia Romagna Press Association had asked the Prosecutor’s Office for clarification on an action deemed harmful to freedom of information and the right to protection of sources. Then there was an official complaint, in which Barbetti also formalised the suspicion, on the basis of confidential sources of which he admitted he had no direct evidence, that there had been further checks on the journalists’ records in addition to those already established, and asking to verify whether his suspicions corresponded to the truth. These statements were deemed harmful by the magistrate who, represented by the lawyer Riccardo Carboni, sued the journalist for slander and defamation. The defence counsel of the magistrate announced an appeal.

THE JUDGMENT – After three years, Judge Martina Marinangeli ruled that the content of Barbetti’s complaint was in no way slanderous or defamatory as the former prosecutor Giovannini had maintained. “The complaint (by the journalist Enrico Barbetti, NDR) – reads the sentence – is presented in a non-assertive way and without certainty, with an express request to verify whether the magistrate’s  conduct complies with current legislation and with explicit reference to the absence of documentary evidence in support of the reports of illegal practices  by confidential sources (…) therefore, precisely as it is addressed to the competent authorities to ascertain any criminal and disciplinary offences and not also to an undifferentiated  public, it does not transition into illegal conduct … The rationale is identified in the balance between two constitutionally protected goods, the right of criticism (Article 21 of the Constitution) and that of personal dignity (Articles 2 and 3 of the Constitution), resolved through prevalence of freedom of speech, without which the democratic debate  could not be realized “.

THE LAWYER Alberto Piccinini, one of the journalist’s defence counsel commented on the sentence to Ossigeno: “It is an important victory because it establishes the principle of freedom of expression, which is often under pressure, with the awareness, by the writer, of having to balance words carefully. Here there was also another point. Enrico Barbetti was not sued because of an article deemed defamatory, but because he turned to competent bodies raising the problem of a possible abuse of power. The nub of the problem to be solved was whether the control of the telephone records without being investigated was legitimate or not. The judge, with precise arguments, declared both libel and slander non-existent, and ruled out that the requirements that peacefully define the boundaries of freedom of expression, i.e., truth and relevance had been violated in the complaint. Instead, the judgement considered the right to confidentiality of sources to be protected. And in terms of the amount of compensation, the judge could only determine that no proof of even presumed damage suffered was provided “. 

LT