Information and rule of the law in Italy. List of the unresolved issues

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An extract from this report was sent to the experts of the European Commission who consulted Ossigeno per l’Informazione for the drafting of the EU Rule of Law Report

OSSIGENO January 24th 2022 – The 2021 statistics confirm that Italy is the country of the European Union in which there are more journalists threatened and more journalists protected by armed police. In Italy, in 2021, at least 30 journalists were threatened and over 25 were under police protection. There is no European country where the phenomenon of intimidation and threats to journalists has manifested itself to an extent comparable to that of Italy.

This has been Italy’s sad record for ten years. It is incontrovertible being based on reliable data, compiled by governmental and non-governmental sources. The non-governmental voluntary association “Ossigeno per l’informazione”, trusted by UNESCO, the Commissioner for Human Rights of the Council of Europe and other international and national organizations, publicly documented in 2021 threats against 384 journalists (see here ). In Italy 384 journalists were threatened in 2021. Ossigeno has updated the December data.

From the 1^st January to 30^th September of the same year, the Documentation Centre on threats to journalists set up at the Italian Ministry of the Interior documented 156 of them. Mapping Media Freedom reported 76. The Platform of the Council of Europe published 8 alerts on some of the most serious cases.

Other data at this link

Ossigeno believes that this large disparity of data is explained by the fact that other observation centres employ fewer observers than Ossigeno, and also have a more limited coverage of observation by virtue of their nature and methodology. (Read here). Italy is doing more and better than other countries to provide journalists threatened with death with proven effective protection. But it does not do enough to protect those journalists (the vast majority of those facing threats) who, while not risking their lives, are subjected to highly conditioning intimidation and threats that limit their ability to continue their activity, endanger their income, their personal assets and the safety of their family members. The Italian authorities offer protection to many of them (about two hundred according to the latest data made public) but not in sufficient quantity and in an appropriate manner to allow each of them to exercise freedom of expression and the right to information.

Insufficient protection of threatened journalists is one of the unsolved problems that have dragged on for years in Italy. But it is only one of the problems of the world off information that await a better solution in Italy. It is one of those serious problems that expose non-compliance with the obligations of the rule of law, problems that damage not only journalists, but all citizens interested in knowing through the media the facts and circumstances of public interest.

The list of Italy’s merits and deficiencies in this field, of the gaps still to be filled in order to prevent arbitrary censorship from being imposed through abuse and violence, the list of laws and procedures to be updated or abrogated, and the duties due to each of the parties involved (Government, Parliament, political parties, trade unions, journalists, publishers, educational institutions, etc.) is long.

The UN Human Rights Commission updates this list every four years as part of the Universal Periodic Review (UPR) https://en.wikipedia.org/wiki/Universal_Periodic_Review-). Another list, largely overlapping has been compiled for some time by Ossigeno per l’Informazione, collecting the analyses based on the experience and opinions of witnesses and experts and is widely known. (read here) and the study “A lot of mafia, little news“.

These lists indicate the most necessary things to do but they are not agreed upon by everyone. Some commitments are widely subscribed to but only in words. In fact, none of the most useful and necessary actions to improve the situation is fully carried out. In particular, the authorities and the media do not adopt the countermeasures that are within their competence. They continue to ignore the required actions or postpone them from year to year. This permits an impunity rate of over 90 per cent.

Ossigeno, together with UNESCO, explored this issue on November 3rd 2021 in Syracuse, Italy with a round table appreciated by the President of the Republic with the awarding of a Medal, which was attended by highly competent experts from various countries. Watch the video and read the summary of the main interventions and other documents.

In Italy, the lack of corrective measures in support of the right to fully exercise freedom of expression and of information permits a status quo that produces thousands of new threats, retaliation, intimidation and unchallenged abuses every year. Only some of them constitute punishable offenses. The others concern serious violations of Article 10 of the European Convention on Human Rights (ECHR) which cannot be prosecuted under current legislation These violations that cannot be prosecuted through the courts are numerous. They include the abuse and exploitation for other purposes of the judicial procedures envisaged to pursue libel in the press. These abuses, indicated in Italy with the term “spurious lawsuits” and internationally as SLAPPs (Strategic Litigation Against Public Participation), are about half of the total Italian intimidations and concern both criminal trials and civil cases but, unlike other countries, in Italy, the volume of criminal trials is about 10 times than that of civil cases. This has an enormously greater chilling effect on freedom of information, because in this country every criminal complaint filed by a citizen gives rise to lengthy and costly criminal procedure. This creates a real avalanche that inundates and overwhelms above all investigative journalists, those who deal with the most uncomfortable news for the powerful, also imposing on those who are falsely accused, without reason, with manifestly unfounded and abusive court proceedings to bear considerable costs of legal defence that in many cases must still be borne by the accused even if the judge declares him or her not guilty. This avalanche jeopardizes the possibility of continuing journalism for those (the majority of Italian journalists) who are not also financially assisted for legal costs by the publisher and puts at risk the survival of financially weaker newspapers, especially local ones . In addition it dissuades many media and journalists from dealing with topics unwelcome to the powerful and criminals who operate by keeping the controversial and questionable aspects of their work out of reach of the media.

In Italy, the inertia of the authorities, public institutions, social organizations, and the inaction that produces the tsunami of unpunished threats prevails, continue to prevail. Nevertheless in recent years, under the stimulus of the continuous monitoring of intimidation and public denunciations, the awareness of these problems, the knowledge of their nature, extent and gravity has grown and it has been highlighted that, in compliance with the positive obligations undertaken by the accession to the European Treaties, every rule of law is committed to solving these problems.

In 2021, Italy did not take any significant steps to update the legislation on press freedom and to strengthen the personal security and assets of journalists, to adapt rules and safeguards to the safety standards required to ensure an environment in which journalists can exercise freedom of expression and the right to information without suffering threats and retaliation, in order to fully implement the rule of law in this matter as well.  2021 was therefore a wasted year, as it had been, for the same inadequacies even 2020.

It is useful to remember that in addition to civil society organizations that defend human rights, the United Nations, OSCE, the EU, the Council of Europe and other international organizations have been calling for years upon Italy to meet these obligations through Resolutions. and Recommendations which unfortunately are still awaiting adequate responses.

In particular, the serious problems listed in detail by Ossigeno per l’Informazione in the previous report sent in June 2021 to the European Commission to contribute to the drafting of the 2020 Report on the implementation of the rule of law are still unresolved.

In a nutshell, these problems concern:

• the non-independent governance of RAI, the state broadcaster that manages the public radio and television service;
• the conflict of interest between politics and publishing; the financial crisis of local publishing; the low pay and the job insecurity of journalists;
• the weak legal status of journalists;
• their unsifted exposure to thousands of legal threats and abusive libel litigation and unfounded claims for damages;
• the criminal configuration of libel which, combined with the obligation to prosecute every complaint, and with the refusal of many publishers to bear the legal costs of the authors of the articles published by them, transforms the right to sue in a powerful punitive weapon;
• the long duration of judicial proceedings which exacerbates the punitive effect of the trials arising from unfounded accusations;
• the fact that professional secrecy is recognized for journalists but with limitations which effectively nullify it;
• invasive judicial actions (searches, seizures of professional equipment and archives, telephone wiretapping);
• almost absolute impunity for those who threaten, attack, use the pretext of defamation to make manifestly unfounded accusations of newspapers and journalists (or seek damages without good reason).

In 2021:

1. the intimidating pressure on journalists was very high, substantially unchanged compared to previous years.

2 the number of journalists who are subjected to intimidation and retaliation by physical assaults, by legal abuse or by hindering their access to information, remains the highest among European countries. ]

As for the Ossigeno Observatory, each year this number is limited only by the amount of human and financial resources available to ascertain unmistakably the facts that occur and whose documentation requires qualified work.

3. the rate of impunity was also very high and unchanged, over 90%.
4. the false representation of the phenomenon of intimidation, which minimizes its extent and social damage and nullifies the search for more adequate measures. This is documented by the enormous disparity between the rigorously documented data of this non-governmental observatory and the much smaller figures published by the other documentation centres ostensibly observing the same phenomenon on the same territory on behalf of the Government or international institutions.

Listed below are some events of 2021 which more than others confirm the unsatisfactory trend already described.

The chilling effect of imprisonment for those found guilty of libel:

In June 2021, an important ruling by the Constitutional Court mitigated (but did not completely abolish) the criminal law that punishes those guilty of libel with up to six years imprisonment. This existing legislation will, therefore, continue to produce a chilling effect on the entire profession of journalists. The same Court, a year earlier, invoking art. 10 of the ECHR had urged Parliament to modify the matter more widely. In 2021 the Court renewed the invitation but the Italian Parliament has not taken any steps in this direction. Some bills on this subject have been waiting for decades to be approved by Parliament.

Professional secrecy to protect journalists’ confidential sources:

In 2021, the Lazio Regional Administrative Court (TAR) established that the journalism programmes broadcast by RAI, the State broadcaster  in charge of the public radio and television service, cannot make use of the professional secrecy granted to publishers and journalists since the state broadcaster is subsumed in the public administration, Therefore, the editors of the RAI investigation program, Report,  had to deliver as part of a libel suit,  a copy of the unencrypted videos which the programme had used in some episodes, in order to keep some contributors anonymous. (In 2022 this ruling was mitigated by the Council of State).

The episode makes it even more evident that it is necessary to change the current legislation, since it recognizes the professional secrecy of journalists with excessive limitations, as already highlighted by Ossigeno in the previous contribution to the report on the rule of law.

Invasive wiretapping.

In 2021 it emerged that the police had carried out as part of an investigation dozens of wiretaps of the conversations of journalists engaged in their work to document the assistance given to migrants crossing the Sicilian Channel in makeshift boats. The practice was revealed on April 2nd 2021 by the journalist Andrea Palladino.

Governance of the state broadcaster RAI

In 2021 the ECHR accepted an appeal by the Radical political party against the acts of the Parliamentary Supervisory Commission on RAI (read here)

Further information is available on the website www.ossigeno.info