Defamation bill. The maxi-fines proposed by Senate are more punishing than prison

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Amendments by various political parties propose to set the minimum fine (which is now € 516) at 10, 20 or 40 thousand euro. What did the Constitutional Court ask for instead

OSSIGENO 28^th October 2020 – By Andrea Di Pietro – These weeks the two bills signed by MPs Caliendo and Di Nicola should be discussed in the Italian Senate. The first introduces regulatory changes on defamation made in print or by other means of dissemination; conviction of the plaintiff, professional secrecy, and provisions for the protection of the defamed subject. The second proposes changes in the matter of vexatious litigation.

The discussion in the Italian Senate comes after the ruling of the Supreme Court issued in June of this year which, in postponing for a year the question on the constitutional legitimacy of the rules that provide for imprisonment for defamation, called for a reformulation of the “sanctioning options”. In essence, it is a question of combining the need to guarantee journalism freedom with the equally pressing reasons for the effective protection of the individual reputation of the victims of any abuse. Victims – the Court continued on this point – are today “exposed to even greater risks than in the past”. Just think of the effects of very rapid and lasting amplification of the defamatory charges caused by social networks and internet search engines, whose damaging nature for the victim – in terms of psychological suffering and tangible prejudices to one’s private life – is greatly enhanced with respect to what happened even in the recent past.

The examination of the amendments proposed by the senators, of both majority and opposition, reveals an unprecedented consensus on the issue of the raising of the fines for defamation. The “sanctioning approach” that seems to be taking shape is one which the entire Senate believes to balance the abolition of prison with very high fines, capable of having a deterring effect on freedom of information far worse than that of prison. All in all, prison sentences were not applied except in the most serious cases.

Nobody is spared. No senator of the Italian Republic has accepted the invitation from experts in the field (read here) and journalists’ organizations to contain the harshness of monetary fines which, as proposed, risk extinguishing in one fell swoop many minor media outlets. Probably not even the most important newspapers will be able to withstand the brunt of the new sanctions. In fact, the repercussions on company balance sheets will be substantial due to the transition from the fine currently in force, almost never exceeding a few hundred euros on average, to the fines envisaged with the amendments being examined by the Senate never less than 10,000 euro. Those who cannot pay, and there will be many, will see their fines converted by the judge into days of house arrest pursuant to art. 102 L. 689/81, or in socially useful work. However, for the purposes of conversion, where possible, one day of detention corresponds to a monetary penalty of 250 euro. Therefore, if a journalist cannot pay a fine of 20,000 euro, he or she will be subjected to a restriction of personal freedom (other than prison) equal to 80 days.

Certainly not a good sign for those who – like us – had placed many hopes  in this first parliamentary passage. To make people understand the level of tightening that would be introduced with the amendments presented in the Senate; we cite some that concern Article 13, first and second paragraphs, of Law 47/48, or the specific rule of libel in print. From all political directions, the left, centre and right, there are amendments that increase fines that were already excessively high and that the Senate Justice Commission had nevertheless approved. In fact, the current range from 5,000 to 10,000 euro would be quadrupled from 20,000 to 40,000. With some amendments, it is even asked to bring the maximum legal limit up to 50,000 euro without a false fact being specifically identified. There are also those who, in the case where a specific false fact is identified, referred to in the second paragraph of the aforementioned article 13, ask for an increase in the minimum penalty, from 10,000 to 50,000 euro and, in the maximum, from 50,000 to 100,000 euro. An enormity.

Beyond the amounts, which here only risk boring the reader, the salient fact is that no senator felt the slightest need to object that the fines decided by the Justice Commission were already too high and that they should be reduced. The amendments tell of a different intention, however oblique, demonstrating the fact that the Italian Parliament often reaches  unimaginable  consensus on the issue of the limitation of press freedom. We do not believe that the Supreme Court meant exactly this when it asked for new “sanctioning options” in response to the imminent abolition of imprisonment for defamation. Probably, as has been the case for twenty years, the best hope is that this umpteenth attempt at so-called reform will also be wrecked and that the old legislation  that, for better or worse, has governed information in Italy country for over seventy years survives. ADP/wt

The lawyer Andrea Di Pietro is the coordinator of the Free Legal Aid  Office of Ossigeno per l’Informazione