Italy. Further tightening of the screw to limit publications

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The weakening of judicial reporting continues as if the only relevant journalism news were the criminal ones

OSSIGENO June 17, 2023 – by Andrea Di Pietro and Giuseppe F. Mennella – On June 15^th  the Council of Ministers approved the draft law on wiretapping proposed by the Italian Minister of Justice Carlo Nordio. The text for a detailed comment is not yet available but we do have the summary released by Palazzo Chigi  (the seat of the central government).

Hence the proposed bill:

• extends the prohibition of publication of the content of wiretaps, which is permitted only if the content is contained in the reasoning of a provision by the judge or is used during the hearing;
• establishes the prohibition of issuing copies of wiretaps whose publication is prohibited, when the request for copies is presented by a person other than the parties and their defenders, unless such request is motivated by the need to use the results of the wiretaps in another proceeding specifically indicated;
• affirms the prohibition on the judicial police to include in their written texts of the wire-tapping “data relating to subjects other than the parties, unless they are relevant for the purposes of the investigations”;
• prohibits the judge from acquiring (in the so-called excerpt) the recordings and the written record of the wiretaps concerning subjects other than the parties, unless their relevance is demonstrated;
• establishes the prohibition for the public prosecutor to indicate in the request for a precautionary measure, with regard to wiretapped conversations, the personal data of subjects other than the parties, unless this is indispensable for the complete presentation. Correspondingly, the judge is forbidden to indicate such data in the provisional remedy order.

Currently, the combined provision of articles 114 and 329 of the criminal procedure code prohibits the blind publication of investigative documents, even if they are no longer covered by the secrecy imposed by the preliminary investigation phase. Anyone who does not comply with this prohibition incurs the offences  set out in article 684 of the penal code: an infringement  that can be erased  by means of donation, i.e., the payment of a sum to  the Cassa delle Ammende (a state agency concerned with rehabilitation of offenders), the amount of which is decided by the judge who proceeds with the criminal investigation.

The mechanism is exactly this with regard to wiretappings  as they are declassified when they are made known to the parties receiving a provisional remedy order. The wiretappings  that are not placed in support of the request for a provisional remedy order remain covered by secrecy and therefore cannot be published even “in the guise of a summary”, to quote verbatim from the criminal procedure code.

A few years ago the Italian Supreme Court dealt with the issue of the relationship between information and wiretapping by establishing that a modest part of wiretaps could, however, be published verbatim without committing  the offences  set forth in article 684 of the penal code since the publication of a small part of a wiretap could be tolerated by the legal system in compliance with the public’s right to know the procedural documents at the disposal of the judiciary in legal  cases of social importance.

Basically, the right to news could have prevailed over the right to privacy when the portion of the wiretap  disclosed was small, limited  and characterized by a marked public interest. The new bill appears to be oriented towards definitively ending any form of tolerance with respect to the publication of even minimal parts of wiretaps even when they are not classified or are not included  by the judge in the reasoning of a provision which by its nature has been brought to the attention of the defendant, thus losing its secret character.

It must also be added that this provision is in perfect continuity with the law on the presumption of innocence which had already greatly restricted the possibility of the media to draw on judicial information directly from the magistrates. In fact, the latter can no longer maintain relations with journalists except through exclusively official channels.

In short, a proposal that starts from afar is completed and which has the ultimate aim of weakening legal  reporting by making the principle prevail according to which only criminally relevant news is published thus forgetting that often what is criminally irrelevant is instead journalistically very relevant and can affect in no small measure  factors that pertain to the balance between the powers of the state, politics, economic interests and all those social dynamics which, even if criminally irrelevant, are suitable for defining  a framework of interests and relationships capable of revealing to the public how power relationships develop in reality.

ADP GFM