Impunity. The gag of libel in Italy. Dossier by Ossigeno

26 October 2016

Shut up or I’ll sue you!
The effects of the laws on libel in Italy
Every year, 6813 cases, 155 sentences, 100 years of prison
ANALYSIS OF OFFICIAL DATA OF THE MINISTRY OF JUSTICE

THIS DOSSIER

Ossigeno per l’Informazione has published this dossier on the occasion of the initiatives that it promoted, together with the European Centre for Press and Media Freedom (ECPMF) of Leipzig, within the pilot project that goes by the same name and supported by the European Commission, to celebrate in Rome from October 24 to 26, 2016 , the International Day to End Impunity for Crimes Against Journalists, an annual event convened by the United Nations.

THE DATA

It is finally possible to say how many judicial proceedings there are, how long they last, how much they cost, and how they conclude themselves in all those case which take place every year in Italy to determine the guilt or innocence of those accused of libel. It is, for the most part, journalists who tell relevant facts in the public interest.

This dossier says so with unpublished statistics that are quite interesting, and that shed light on a situation so far inscrutable. These are official figures. They come from the Statistics Office of the Ministry of Justice, which has produced them for the first time in a specific form, accepting an explicit solicitation from Ossigeno per l’Informazione, and authorizing its diffusion. The Ministry has provided eloquent tables and explanatory notes in full, reproduced in the Appendix. The analysis and the elaboration exposed in these pages was carried on by Alberto Spampinato in collaboration with Giuseppe Federico Mennella and lawyer Andrea Di Pietro.

These data allow a precise and objective knowledge of the actual effects of the Italian legislation on libel. They say that the situation on the ground is quite different and, for many different reasons, more worrying than anyone could have imagined. It is hoped that this document will help bring back the political debate with regard to this specific issue to a more solid table, and encourage legislative fixes which are consistent and effective.

Ossigeno also hopes that these statistics are updated from year to year and that the sample will be extended to cover all courts, both civil and criminal, Courts of Appeal and the Supreme Court, and that also the number of pending cases is shown.

THE SAMPLE: 43 COURTS ON 139

The sample from which the Ministry of Justice has drawn the elements to describe the statistical trends for libel trials is composed of 43 of the 139 Italian courts. The courts examined are part of eight different Judicial Districts from the North, Center and South of the country. The sample covers 31 percent of the national total and is therefore considered to be representative of the different geographical areas. Ossigeno has projected the data of the sample for the whole country, thus obtaining representative values of the performance of these trials in the world of Italian judiciary.

WHAT COMES TO LIGHT, WHAT REMAINS IN THE DARK

These new data are almost exhaustive as pertains to criminal proceedings. Instead the information on civil cases, which are also significant and illuminating, need to be supplemented by other specific surveys. With respect to civil litigation, the tables provided by the Ministry and reproduced in the Appendix, only indicate the trend of mandatory mediations for claims for damages caused by libel. The tables provide the number of hearings of this type and the average value of the requested compensation.

Another table shows the number of appeals to the Supreme Court in recent years, but not the statistical performance of their outcome, for or against the accused of libel, because it is not possible to know which party benefits from the cancellation (with or without postponement) of the judgment. We therefore hope that this data will be available soon with further statistical details.

A CONTRIBUTION TO THE PUBLIC DEBATE

In this dossier Ossigeno expresses opinions, technical and legal assessments and policy considerations which reflect its exclusive point of view and are not binding in any way to the data source. With this premise, the Observatory expresses above all the hope that these new data give rise to greater political attention and will allow to take a decisive step forward for the political and Parliamentary debate on corrections to be made to existing legislation. This now seems essential to prevent that the defence of personal reputation can be exploited by those who want to limit the freedom of the press and the right of citizens to be informed. Unfortunately, this is happening, and it is not merely an opinion of Ossigeno per l’Informazione, but also the position of the highest international institutions.

THANKS TO THE MINISTER OF JUSTICE

Ossigeno thanks the Minister of Justice Andrea Orlando, the Cabinet, the Director Fabio Bartolomeo and other executives of the Ministry of Justice for their cooperation, also for the constructive spirit showed upon Ossigeno’s request to develop objective and official data, to provide even the legislator with unpublished and valuable elements. Ossigeno thanks, among others, also the judge of the Supreme Court, Maurizio Fumo, for having provided precious technical and legal guidance. Ossigeno has fought to ensure that these data were obtained from reference works scattered in different courts and were provided officially, inspired, as always, by the motto of Luigi Einaudi “Know in order to decide.” A maxim that has been motivating all the activity carried out since 2006.

EVERY YEAR 6800 NEW TRIALS TREATED. OTHER 1300 REMAIN OUTSTANDING

There were at least 6,813 proceedings for libel “defined” every year by Italian courts in the 2014-2015 biennium. Because this dossier is not addressed only to subject experts, we must specify that the “defined” trial cases are those for which the Judicial Office has taken a decision.

To these procedures another 1300 must be added representing the estimated pending load, which is the number of trials that accumulates from year to year. Indeed, there are more trials being brought to the courts than these are able to bear. The ministry figures for the four-year period 2010-2013 show that in this period, at a preliminary stage and in court, 9’001 cases were registered and only 8’148 were instead defined. So, every year there is an accumulated load of 214 pending cases. Since the statute of limitations is triggered, depending on the case, after 6 or 7 years and a half, it can be estimated that the accumulated suspended load in the same period is of 1200 to 1400 proceedings.

These are the details of the criminal proceedings defined each year:

• 5’902 criminal cases (complaints);
• 911 cases for civil damages.

MANY REPORTERS, MANY TRIALS?

Thus, the rate at which these proceedings advance in the palaces of Justice is high: 567 per month, 19 per day. But the most important number is their enormous size. If the number of Italian journalists who treat the most delicate and controversial news information are roughly the same, it is quite clear that the phenomenon affects the entire reporter population.

COMPLAINTS INCREASE BY 8 PER CENT PER YEAR

The number of these trials continues to increase from year to year. In the four-year period of 2010-2013 it has increased at a rate of 8 per cent per year (+7.85 percent the complaints with attribution of a given fact, 9.3 percent all the others). In the absence of corrective measures, from 2017 onwards, the criminal proceedings for libel every year could reach 7500.

COMPLAINTS: 2.5 YEARS FOR AN INVESTIGATION, OVER 6 YEARS FOR A JUDGMENT IN THE FIRST DEGREE

In Italy the excessive length of trials is a phenomenon that comes to light also in criminal proceedings for libel. In 2010-2013 preliminary investigations for these trials have required an average of two and a half years. For trials that do not find a conclusion in this first stage, the courts have taken another three years and ten months for giving a judgment: thus, from the moment the trial begins to the moment when the sentence in the first degree is issued an average of six years and four months goes by. Considering also the times to set an appeal judgment, we can say without fear of contradiction that “normally” a libel trial comes to appeal already prescribed. And this results in a negative effect for the journalist who expects the appeal to correct a possible miscarriage of justice. The prescription leaves unaffected the civil rulings and thus, in fact, does not solve the economic problem related to damages.

The duration of civil cases for damages lacks specific data, but the time trend appears to be similar.

ALMOST NINE OUT OF TEN TRIALS ENDS WITHOUT SENTENCE

In the 2014-2015 period only 8 percent of the defined criminal proceedings have concluded the trial with a condemnation of the accused (5.8 in Court and 1.6 per cent in preliminary stages), while in 87 percent of cases the courts have acquitted the charged journalist with the different formulas set out in the procedural code. For the remaining 5 percent of cases, the solutions do not fall into either of these two categories.

Therefore, each year a mountain of complaints are defined (5902 to be exact) and this mountain produces a mouse: 475 convictions, of which 320 for the payment of fines and 155 for prison sentences that “in almost all cases, never exceed one year”. But, as can be seen below, they accumulate every year more than a hundred years in prison.

The fact that only a small percentage of complaints is validated by a judgment means that many complaints contain unfounded, exaggerated allegations. It means that many libel charges are specious, are formulated instrumentally, are presented for reasons that have nothing to do with the protection of reputation. Theses are real abuses of the law. These abuses make the justice machine run idly and transform it into a tool of intimidation and blackmail, in a gag for newspapers and journalists. Many complaints should therefore be stopped in its tracks. And those who commit these abuses should be discouraged by the means provided by the law, by applying systematically the penalties already pin place to punish reckless lawsuits, disputing the crime of slander and introducing new deterrent rules, as already happens in other countries. Finally, a rule should be introduced providing, in case of defamation, for the automatic condemnation of the plaintiff to cover the costs and compensation whenever the case is deemed invalid to proceed.

THE BARRIERS FACED BY A JUDGE FOR THE PRELIMINARY INVESTIGATION ARE VERY HIGH, BUT THEY TAKE EFFECT ONLY AFTER 30 MONTHS

Let’s take a look at what happens during the preliminary stage, in front of the Judge for the preliminary investigation (or GIP). It is important to note that as many as 70 percent of libel suits end their race during this initial phase because of the decision by the GIP to send the case to the archives. To this figure a further 1.6 per cent must be added consisting of the closures arranged by the GUP (Judge for the preliminary hearing) because of remission of lawsuit, no substance to prosecute or acquittal by expedite procedure. An eloquent fact emerges: the complaints that are not sufficiently grounded, at this early stage, are more than seven out of ten. It is a good thing that these meet such a high barrier in the preliminary phase, thanks to the evaluation harmony between prosecutors and GIPs. But the ways and times of this barrier are not sufficient to prevent spurious lawsuits to be used instrumentally for intimidation and retaliation, like a real gag on journalists who publish inconvenient news.

UNFOUNDED COMPLAINTS ARE EASY2 AND UNCONTESTED

During the preliminary phase, which on average lasts two and a half years, the journalist accused assumes the status of defendant, must appoint a defender, has to bear the costs and legal uncertainty of the trial’s outcome, which leads him and his newspaper not to treat the subject from which the complaint arose. And also when the judge trashes the lawsuit, those who have abused the system usually suffer no penalty, they even manage to avoid paying the legal fees incurred by the journalist accused in pretentious way or without good reason. The GIP’s filter is high, but it is not high enough. This is highlighted by the high percentage (16 per cent of the total of 5902 cases per year) of acquittals issued by the courts after the hearing.

HOW ARE THINGS IN THE COURTS

The trials against journalists indicted for libel offenses, in 2014 and in 2015, have seen the courts produce the following results:

• 26.4% Acquittal
• 32.4% Not to proceed or not to proceed due to lawsuit remission
• 5,2% Not to proceed or not to proceed due to statute of limitations breach
• 20.4% Sentenced to fines
• 9.4% Sentenced to imprisonment
• 6.2% Other

103 YEARS OF PRISON EVERY YEAR

In 2015 journalists convicted of libel were 475: 320 sentenced to the payment of fines and 155 to prison terms. Two out of three sentences have been commuted to a fine. One in three is a prison sentence. This in most cases has not passed a year in prison. Prudently estimating an average sentence of eight months in detention, it can be said that every year there were issued sentences totalling 103 years in prison. The data was obtained from an average for the 2014-2015 biennium.

OSSIGENO ESTIMATES: ALARMING, BUT TOO PRUDENT

Therefore, the sentences to prison terms are numerous, more than previously thought. The years of imprisonment are higher than those estimated by Ossigeno on the basis of empirical observations, estimates which nonetheless were already impressive. In the Dossier published in July of 2015, based on the conclusion of trials of which the Observatory was directly aware of, Ossigeno had held that in three and a half years, in the period between October 2011 and May 2015, the Italian courts had imposed sentences to prison terms for defamation in at least thirty cases to as many journalists, photojournalists and bloggers, for a total of 17 years in prison. It was thus indicated an annual average of nine sentences to prison terms totalling five years of prison. Official figures say that, in fact, the years of prison are twenty times greater. This confirms that the Ossigeno per l’Informazione estimates are reliable, but still too cautious. To get the actual picture of the situation, for each case of threat, abuse or intimidation confirmed by the Observatory, it is necessary to add at least ten more. This allows us to say that the three thousand journalists threatened in the 2006-2016 period, of whim Ossigeno has published the names and stories, are the visible part of a much larger population of threatened chroniclers, estimated at about thirty thousand units.

THE CHILLING EFFECT ON INFORMATION

It certainly would not be fair to be permissive with libel and it shouldn’t be accepted to allow an intentional divulgation of false truths. We must defend the reputation of individuals and punish gratuitous and unfounded offenses. But it is not wise to throw the baby out with the bathwater, as we do in Italy. To punish libel under criminal law, and even with a prison sentence, produces – as emphasized by the most important international institutions – a chilling effect on journalists, on newspapers, and on the whole world of information.

The fear of an indictment and the possibility, even a remote one, of a sentence to be served in prison (or the alternative is detention in a cell) lead many information professionals to treat only soft news. A fear that drives the trashing of news that could cause a violent reaction or legal action of powerful people willing to report a slur on their reputation, even though the facts show that no crime was not committed.

ASKED EVERY YEAR 82 MILLION EURO IN COMPENSATIONS

Ossigeno has been indicating for a long time the road indicated by the case law of the European Court of Human Rights; it asks that the element of truth and good faith, as occurs in other countries, is considered a sufficient supporting element for libel cases; it asks both for the abolishing of imprisonment and that the whole matter be regulated by the Civil Code, with procedures of the highest guarantee for the accused.

In fact, in Italy also civil cases for damages are easily manipulated and turn them into means of retaliation against anyone who publishes unwelcome news. It has been known for some time, and Ossigeno reported it with concrete episodes, that the impact of these lawsuits on press freedom is high.

Now the eloquence of the official data, provided by the Ministry of Justice, says that the chilling effect of civil cases is even stronger than previously thought. It is apparent that the amount of compensations required for each of the 3643 civil claims brought between 2010 and 2013 was on average of 50 thousand euro. So, in the four years a total of €182.5 million, equal to €42.5 million a year, were asked in compensations. A huge figure. And because of the accounting obligation to register as a liability that part of the amount of compensation required, these claims affect the publishing industry already on its knees due to the economic and industry crisis. Exaggerated claims for damage, in general, are rejected by the judges but, until the judges decree its dismissal, requests hang like Damocles’ swords over the heads of publishers and journalists, and push even the bravest to be very cautious, to think about it a thousand times over before publishing any news on the same subject, although this is of ascertained great public importance.

THE HUGE COSTS OF LEGAL DEFENSE: €54 MILLION EACH YEAR AND STILL NOT ENOUGH

The Italian journalists sued for libel spend each year at least €54 million to sustain legal defence expenses. And since today only a minority have guaranteed a legal protection by the editor, most of these costs could affect the personal budgets. Perhaps, most likely, the outlay is even higher: the simple calculations presented here relate to the minimum rates set by the Order of lawyers, which are typically exceeded. Furthermore, the count does not include the cost incurred for complex cases, nor for the appeal trial, nor for appeals to the Supreme Court, of which there are on average 324 per year, and the minimum rate of 3-5 thousand euro alone would imply an additional total cost of €1.3 million.

THE FAILURE OF MANDATORY MEDIATION

Other ministerial data say that on defamation mandatory civil mediation, introduced in 2010 as a liberating revolution which was supposed to resolve the disputes in a short time and without burdens for justice, has been a substantial failure. Mediation so far was used by just a third of the persons named, and 86 percent of mediations failed.

A TAX ON INNOCENCE

In order to understand in what way the rules and the current procedures are punitive for journalists, it is necessary to bear in mind that, on a charge of libel – even if generic, unfounded or poorly motivated and sometimes false – it is possible to impose on a journalist or on a newspaper a cost which for many equates or exceeds the gains of a year’s work. A sort of fee to prove their innocence. And as much as it may sound absurd, every journalist can be forced quite easily, following instrumental accusations aimed at intimidating, to sustain these expenses, because the law requires the journalist to prove its innocence.

To file a libel suit is easy and costs nothing. Meanwhile, the defendant becomes charged with an offense punishable by six years of prison, forcing him to appoint a lawyer and that costs at least five thousand euro, in the simplest of cases of acquittal, early stage or trial (92 percent of cases).

Even if at the end of the trial the journalist is declared not punishable, in many cases it is impossible to obtain payment of the expenses incurred. The judge sanctions the acquittal acknowledging that a right had been exercised: the right of the press and of criticism, that few know and recognize, despite it being protected by the Constitution and by European norms. A journalist should not be subjected to a trial aimed at establishing that by performing his work, he is exercising a right. It should not be necessary. The law should suffice.

A CONTRIBUTION TO THE WORK OF PARLIAMENT

The data in this dossier are unedited. Thes are also for Parliament, which has been for many years committed to legislate on this sensitive matter. The research did stem from the surprising finding that the legislator was trying to clear up the matter without holding a map of the situation. Ossigeno believes that the lack of knowledge of the actual consequences of current legislation explains, at least in part, why in this field, and for many years, Parliament has been moving without reaching any result, giving the impression of moving within a maze, whithout being able to find a way out.

On this subject matter there are different views and paralyzing contrasts, cross vetoes, and a tug of war between those who want to open – at least a little – the tap of freedom of information and those who would like to close it even more than what the Constituent Assembly allowed for at the beginning of 1948, due to historical and political concerns which then seemed to make sense, but which today seem more tenuous. On February 8, 1948, indeed, the very strict Press Law came into force, which is still applied today. That law closed most of the new spaces of freedom that the same Constituent Assembly had opened, just a month before, with Article 21 of the Constitution of the Republic. It was immediately clear, yet a way to remedy it has never been found, and with the passing of time it has also ceased to be discussed. Now that these data provide us the picture of the problem, and show us the map of the maze in which we’ve been wandering for the past 68 years, maybe, we can resume the discussion in the right direction to reach the exit.

We hope, therefore, that this photograph taken from within the legal world, which depicts the disaster in which we have been swimming for almost seventy years, and the symptoms of the very strong conditioning that undergoes the freedom of information, can help put the discussion on a righteous track. It is time that the urgent needs imposed by the objectivity of the problems and the interests of democracy encourage the House to create the conditions for a fully and effectively free press.

CONCLUSION

In Italy, therefore, the judicial proceedings against journalists, bloggers and opinion leaders accused of defamation in the press are almost six thousand every year, and their number is growing at the rate of 470 a year. All this affects freedom of information – also due to prison sentences which every year add up to a hundred years in prison -, limiting the right to exercise freely the right to inform and be informed. To suffer the consequences of these limitations are ultimately the citizens, to whom it is denied, in whole or in part, the right to know some information needed to participate to the public life. But, certainly, in the first place, the victims of this inappropriate abuse are the media operators, the reporters, the publishers, the columnists, all those who have the duty and the professional role to collect and disseminate all relevant information to the public interest. These operators should not be induced to silence some news out of fear, even of physical, judicial or other kinds of reprisals, as it unfortunately happens because of punitive laws and procedures that cannot seemingly be fixed.

Various factors allow those who want to hinder the movement of undesired information to do so much too easily by simply bending in their favor, for instrumental purposes, some legal institutions such as defamation suits and claims for damages, and some legal proceedings born for purposes of justice. Among these factors there is certainly the current legislation, which requires the journalist sued the burden of proving to the judges of having exercised a legitimate right of the press and / or criticism. A burden that entails considerable legal fees that in most cases the journalist sued or cited must pay for itself, without the support of the publisher. Another factor that multiplies the intimidating effect of the lawsuits is the long duration of trials. As also another factor weighing down on the criminal character of these disputes is the risk of the defendant of facing prison, since in Italy a journalist sued for defamation faces a prison sentence of up to six years.

Official figures on convictions say that prison sentences are applied, and not sporadically so (resulting in 155 convictions each year), and that the abuse of the power to make specious libel suits and actions for damages is essentially unchallenged. It should be said that 103 years of imprisonment sentenced every twelve months are quite a few. And it is not true to say that, in practice, no journalist (or almost none) actually ends up in jail: to have a criminal conviction is heavy in and of itself. And prison sentence even more, although its execution may be suspended conditionally: that is, if the same offense will not be repeated and no other convictions will occur. Who suffers a conviction for practicing freedom of information, for having exercised a universally recognized right suffers a trauma that is difficult to overcome and is induced to avoid similar risks, even at the cost of practicing self-censorship. The chilling effect, therefore, also acts for those who are not serving their sentences in prison. These are elementary truths that should not even need to be ascertained.

These problems have been known for long. Their gravity has been indicated for sime time by the organizations that protect freedom of the press. And this severity is recognized by politics and Parliament. Why can’t Parliament give an answer?

Until now, the absence of an objective representation of the problem has led to minimize the reality and to postpone the assumption of any kind of medicine. But now, finally, the Ministry of Justice has turned on the light on the phenomenon, now that the government has provided objective and irrefutable data, no one can hide behind the excuse of not knowing what is happening. The situation is far more serious than was believed until now. And it is necessary to take action immediately. It is no longer the time of hesitation and continual postponements. It is just no longer possible to hide behind the bills that promise to remove prison, but would introduce new gags in exchange.

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Dossier by
Alberto Spampinato
Andrea Di Pietro
Giuseppe F. Mennella