Libel. Thoughts and troubles by a freelance journalist who has been sued

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Every year thousands of reporters find themselves needing to appoint a lawyer without publisher’s legal aid – How do they cope? – What goes on in their mind?

OSSIGENO March 24^th 2022 – One of the most embarrassing situations a journalist can find him or herself in when the journalist is called to the police station and notified of a libel suit for an article published in the newspaper with which the journalist collaborates. At the police station the journalist’s personal details are taken and the journalist is advised to immediately appoint a defence lawyer.

It is a distressing experience especially for those for whom it is the first time as happens to a large number of journalists. Every year in Italy about nine thousand lawsuits for libel are served.

Those who have been through it know how to conduct themselves, they know the problems they will have to face: hassles, anguish, expenses, the risk of being sentenced to a fine or even a prison sentence (up to six years, according to the law), or to pay compensation. The perception  of being portrayed as a scoundrel for the mere fact that someone believes the journalist has broken the law by damaging his reputation, testing the limit of legality based on considerations that in nine out of ten cases do not correspond  with those required by law.

The sued journalists are not all similar. Some have learned from their newspaper that the police have sought them and for what reason. Other journalists are personally summoned to the police station. This does not make much difference if you are a freelance journalist, that is, an external collaborator and not an employee with a permanent contract; the latter receive more assistance from their newspapers.

But you are freelance, you are considered a second-class journalist compared to colleagues who are employed by the newspaper even if you are personally respected and you deliver meticulous news appreciated by the editorial staff and satisfying the newspaper. In these cases, with rare exceptions, you have to deal with it alone, even if the chief editor and the publisher were also sued for the same article.

Because, you must know, that in Italy, even if the law provides for the joint and several liability (i.e. not severable) of the author, editor  and publisher, whoever initiates a lawsuit  can decide to sue only the author, without explicitly citing the responsible editor and the newspaper publisher of the disputed article. And only those who are sued are liable to be convicted. The most calculating plaintiffs use this selective faculty to isolate the author of the article from his or her newspaper and thus weaken the journalist on a procedural level.

During the investigation, the public prosecutor, if he so wishes, if he remembers, can also call upon the other jointly responsible subjects, in these cases the responsible editor and the publisher. It should happen always. But it does not and this opens up the possibility of using lawsuits as sniping weapons aimed at the weakest link in the publishing chain, the author of the article, and facilitates opportunistic behaviour by the publishing companies. This is all permitted through a serious lacuna in our legal system.

And so you have been summoned, you have been made to understand more or less clearly for which article you were sued, but you are not sure who sued you. You are not shown the lawsuit. But you are asked to appoint a defence counsel, on the spot or within a few days. If you do nothing, you will be assigned an official lawyer. If you are not really down on your uppers, you will have to pay for it. One might as well choose someone who is competent, someone you trust. Who knows how much it will cost!

What to do? You try to ask the editor with whom you collaborate for help, hoping that he or she will put you in contact with the legal department of the newspaper. You rarely find help and understanding. You blame yourself, swearing. “This was all that was needed. You should have been more careful. Sort it out yourself,” the editor usually says. The editor reacts like this out of ignorance, either not knowing what to do, or fearing  that he too will be or has already been blamed..

In Italy everyone tends to treat the defendants in lawsuits as victims of the plague and they, for the most part, behave as such. Many ignore (or pretend to ignore) as we have said, that in this country nine out of ten lawsuits examined by the judge turn out to be spurious, unfounded, or intimidating. The statistics on the outcome of the trials indicate so. If everyone was aware of that, the accused journalists would be treated more humanely and with more solidarity: as people unjustly prosecuted, accused but innocent until proven otherwise by a trial. Instead the accused is often immediately put on an  index as in the Inquisition, isolated, exposed to the pillory as if the lawsuit  were a sentence, while it is only the accusation of a private citizen. A  judge in compliance with the obligation to prosecute for each crime report he receives must subject it to the test of a trial to establish whether it is true or false. An eligibility filter is needed but there is none. And so this inflexible legislation allows lawsuits to be widely abused, to be used for intimidating, punitive, and retaliatory purposes.

In other countries these abuses are severely penalised and therefore they are rare.  Moreover the right to sue is much more restricted and defined and the lawsuits  must pass a preliminary examination before a trial is begun. In Italy there have been discussions for decades about adopting suitable procedures to stop these abuses. Instead, with the entry into force of the new penal code, matters have got worse. What is to be done? The issue is discussed in Parliament but the rules do not change. The current ones are advantageous  for all those who want to prevent the publication of disagreeable news and this can be achieved also through baseless lawsuits. And so you, a freelance journalist, finding yourself in the police station and not knowing what to do have ended up in this meat grinder. Among other things, you realize that you now risk being the target of controversy and attacks by your own colleagues (those who don’t like you) who could spread the news of your lawsuit in a negative way, to imply that you are not so reliable. This would harm you. These thoughts lead you to not let anyone know that someone has sued you, to be ashamed of something of which you are not to blame. In this state of mind you have to take a decision. Who will you be assisted by?

Meanwhile, the newspaper has appointed a trusted lawyer for the chief editor. With little effort, the publisher could also entrust him with your defence. The legal department and the chief editor  are well aware that you too must appoint a lawyer. But they don’t tell you anything.

It is unjust and you well know it. You too should have the right to have a lawyer paid by the newspaper. You know that but you don’t say anything. Don’t call the paper to claim that right. Don’t even try! Your colleague has already blamed you for that lawsuit through no fault of yours. You wrote the truth, correctly, you made the necessary checks, in the editorial office your bosses have read and reread it before publishing. Why shouldn’t they defend you also?

Patience, you say. In your heart you are convinced that the judge will prove you right. But up to a certain point. You never know how these things will turn out! Nor how long these trials last. However, you decide not to tell your partner and family members about it. They already have a lot to say about your paltry  earnings. A colleague told you that his wife left him when he was sued by the mayor. And she didn’t even come back when he was acquitted, six years later!

Forget about it. Now you have to appoint a lawyer. What are you going to do then? You make do with what knowledge you have. Fortunately, as happens to many journalists, while doing your job, you have come into contact with some lawyers and with a couple of them you have established friendly, collaborative relationships, to get or to verify stories.

And so in the end you turn to one of them, you inform him and you appoint him as a trusted defence counsel. Maybe he won’t ask to be paid, or he’ll ask to be paid only a little. That remains to be seen. However, somehow you will have to repay him.

You were paid only a few euro for that article and you have probably already lost a year’s earnings. How does a reporter work tranquilly and avoid these pitfalls?

This article was inspired by some true, on-going stories which Ossigeno per l’Informazione has been informed about in detail in recent weeks. The Observatory has decided to make them known by collating  them but  omitting the names of the journalists so as to avoid them being subjected to retaliation. It is published as part of the MAP Project – Monitoring Assistance and Protection of Journalists that Ossigeno is carrying out in collaboration with UNESCO with the support of the Global Media Defence Fund(GMDF).

In recent years, the Observatory has become aware of other similar stories and their unfolding, often resulting in acquittal or the case being archived. But almost always without the compensation for the legal costs incurred being acknowledged. In recent years, over sixty journalists have been supported by the Ossigeno Free Legal Aid Office. Many others have taken advantage of the advice and opinions of this service which would like to have more resources to satisfy all the requests.

Awareness of  the tangible  difficulties faced by thousands of journalists in Italy is the prerequisite for overcoming them, for urging more modern and appropriate  legislation and for encouraging the creation of new tools of solidarity to protect both  the right of reporters to continue exercising. their profession and to protect their personal assets, and the right of citizens to receive all current information of public interest from the media.

ASP