Five years of Legal Aid: 26 aided for free, 8 gratuities and 10 victories

24 January 2020

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This is the balance sheet of the first five years of the Free Legal Aid office of Ossigeno coordinated by the barrister Andrea Di Pietro.

The Free Legal Aid Service was established by Ossigeno in 2015 with the specific objective of curbing the growing phenomenon of reckless lawsuits against Italian journalists. In particular, at the time, our attention was directed to freelance journalists and all those who did not have a publisher to support them in their defence of the case against a reckless lawsuit.

Today we know that as many as 70% of the libel lawsuits are already dismissed in the preliminary investigation phase, or before the hearing. We learned of this data from an illuminating statistical study published in 2016 by Ossigeno (see here) subsequently fully confirmed by the updated data released on the 25^th October 2019 by Prof. Giuseppe Federico Mennella. This 70% basically says that most of these lawsuits rendered “dead” with their being dismissed are in fact reckless.

Ossigeno is the association in the world of journalism that first appreciated that reckless vexatious complaints (those that occupy almost all of that 70% of proceedings dismissed) must be countered by guaranteeing concrete and free legal aid to those who are not supported by a publisher and who could not afford the defence expenses.

Ossigeno felt the need to create this service because it understood that a journalist who is in this situation must be helped to resist the temptation to solve his or her problem by resorting to self-censure. How can this risk be prevented, if not by offering an effective, free and at the same time competent defence in court?

To this must be added that behind that 70% of dismissed lawsuits, there are as many other plaintiffs who have been imprudent or reckless. And anyone who acts even in the most reckless way risks absolutely nothing in the Italian penal system, unless that person is accused of the offence of slander.

We believe it is deeply unfair that this happens so often. It creates a substantial form of impunity for those who defend their own interest at the cost of limiting the freedom of journalistic expression. This form of impunity, although not illegal, is no less repugnant and vexatious than other manifestations of interference in the free exercise of the right to report and criticize. It can be regarded as a lawful form of impunity.

We have been waiting for many years for specific legislation to be introduced to combat this way of acting. Meanwhile, for those who act with these oppressive intentions by complaining of an alleged defamation, it remains much more advantageous to choose the “criminal law” route instead of the “civil law” one.

In fact, the reckless complaint – even if it is then dismissed, still generates immediately an intimidating effect: i.e., the effect of inducing the targeted journalist to desist spontaneously from dealing with certain themes. This phenomenon is very worrying and far from uncommon.

The Free Legal Aid of Ossigeno, set up precisely to counter the growing phenomenon of self-censorship by journalists being sued, is aimed at two types of journalists: firstly freelancers, who by definition do not have a publisher ready to protect them even legally; and secondly the journalist “orphans” of a publisher, that is, those who originally had a publisher with whom to share criminal and civil responsibilities, but they lost it, because it ceased its activity, generally due to the serious crisis that publishing is going through at every level. One thinks, for example, of the various corporate bankruptcies that have occupied the recent news on publishing.

The latter category is perhaps the most traumatic for a journalist. By having an editor behind him, the journalist did not even calculate the human and financial cost of any lawsuits and on the basis of that guarantee, he took risks. Then suddenly the publisher disappeared and the journalist finds himself facing the most complete economic and professional isolation of the lawsuit, sometimes with claims for millions, which endanger his personal assets, sometimes with the real risk of a prison penalty. Because, as is well known, the sentence for

Defamation leads to a prison sentence and remains a sword of Damocles suspended on the heads of many journalists on trial for libel. This will remain the case until the Italian Parliament, or even before that the Constitutional Court, as we hope, will rule against the application of imprisonment.

This is why Ossigeno’s Free Legal Aid office offers its services essentially to freelancers and journalists who do not enjoy the so-called indemnity clause, the agreement under which the publisher covers both the legal costs and any damage compensation imposed by a sentence. In Italy, journalists without editorial indemnity are now very numerous, almost all of them.

The L’Unità newspaper case

The “counter” of Ossigeno was also born on the wave of the “L’Unità case”. Following the bankruptcy of the publisher, numerous journalists of that newspaper and the ex-editor in chief Concita De Gregorio, found themselves in serious difficulty, suddenly facing important lawsuits for libel and compensation for damages, also for the share due to the publisher, seeing their personal assets affected or threatened.

Who finances this service?

Legal assistance has an unavoidable cost. Ossigeno has been able to provide this service free of charge to numerous journalists thanks to the annual funding obtained for this purpose from the London NGO Media Legal Defence Initiative which we once again thank publicly and which in turn finances itself through donations.

It is sobering to note that Ossigeno has so far failed to find additional funding in Italy for such an essential service to guarantee press freedom. But we are confident that in the face of a situation that shows no sign of improving someone will come forward and support the collection of funds necessary to help Ossigeno in this fundamental undertaking. It is necessary to offer this legal aid service to a greater number of clients and for that more funds are needed.

Direct and indirect assistance

In addition to direct assistance, Ossigeno also offers an indirect one, giving gratuities by way of reimbursement of a part of the legal costs incurred by journalists assisted by their reliable defence counsel. In 2019, eight journalists benefited from this particular form of aid. They have publicised their gratitude on the Ossigeno web-site. Everyone recognized the vital usefulness of this service. This led us to provide this service also in 2020.

26 clients aided, 10 victories, 16 on-going trials

The balance of the first five years of this service is exciting: no guilty sentences. We have borne the defence costs of 26 journalists. For 10 of them the trial has already ended with a positive outcome. We have also paid gratuities to eight journalists.

Acting as the civil party

In 2019 Ossigeno began to legally support journalists who were threatened or physically assaulted in carrying out their profession, looking after the civil action part in the criminal trial. In addition, Ossigeno per l’Informazione itself as an NGO has become a civil party whose main associative interest has been injured, i.e., that of protecting journalists from any form of violence or threat.

Lastly, in fact, we have taken on the defence of the two journalists of L’Espresso who on the 7th January of this year were violently attacked by representatives of Forza Nuova while conducting reporting at the Verano Cemetery in Rome, during the commemoration for the 41^st year anniversary of the Acca Larentia massacre.

Even this latest action of our legal aid service has proved to be fundamental for the freedom to inform and be informed, offered free of charge to many journalists burdened by risks and mounting costs. For this reason, in 2020 there will be a section of the legal aid service dedicated to these cases in which the journalist is a victim of crime in carrying out his or her profession.

We are very proud of these results. Five years ago they seemed unthinkable.

We are grateful to our friends in the Media Legal Defence Initiative who believed in this project and have supported us. And we thank the many journalists who have entrusted us, in a certain sense, with resolving a very important problem in their life, and helping us to make this legal first aid service known.