Italy. Ossigeno opinion on the defamation bill sleeping at Senate

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Weak points and corrections – Ossigeno‘s proposals – The concrete effects of the legislation in force – Suggestion from  the outcome of the trials

OSSIGENO – 30 May 2023 –  This contribution of Ossigeno per l’Informazione to the discussion of the bills n. 81, no. 95, no. 466, no. 573, and no. 616, regarding libel was sent on May 30^th  2023 to the Senate Justice Commission –  Giuseppe F. Mennella, Andrea Di Pietro and Alberto Spampinato have contributed to the formulation of this opinion

The Parliament’s initiative to renew the debate on the issue of libel, to reform the laws on this matter, both in the civil and criminal fields, corresponds to the need for an urgent regulatory modernization that has emerged over many years at European level. Moreover it  also responds to the authoritative call of the Constitutional Court through the well-known sentence n. 150/2021 which, in declaring article 13 of law 47/48 unconstitutional and partially abolishing the prison sentence on the subject of defamation, left the task of a comprehensive reform of the entire matter to the legislative body.

The declared objectives of the proposed bills n. 81, no. 466 and no. 573 and other texts under discussion within the Senate’s Justice Commission to fulfil this task, are in some parts acceptable as they are in line with the invitation of the Constitutional Court to use the jurisprudence of the European Court of Human Rights as a ” instrument for the expansion and adaptation of domestic law”. However, they present some critical issues and leave unresolved some problems highlighted by the progress of libel trials and by the frequent abuse that is made of them.

THE CONTEXT

1. Before formulating comments and proposals, it is appropriate to recall the terms and dimensions of the problem to be solved with this legislative modernization. In Italy for too many decades the legislation on libel (Law on the press n. 47 of 1948 and article 595 of the Penal Code) has made it possible in an intolerable  way to abuse  the judicial system in order to limit the freedom of expression, the right to information and conscious participation in public life.
2. Numerous “recommendations” of the United Nations, OSCE, UNESCO and other international organizations, and some judgments of the ECHR, have signalled the chilling effect of any criminal legislation on libel and the provision of imprisonment for those guilty of libel. These organizations have called for this matter to be regulated differently, by changing the laws and decriminalizing libel;

• In 2022, UNESCO noted (see here) that, despite these “recommendations”, the misuse of the judicial system persists in many countries, including Italy, creating one of the most widespread and inhibiting  methods on a global level by which the right to information and the participation of citizens in public debate are unduly limited. This occurs as a result of the inadequacy of the laws in force and, in particular, of the criminal penalisation of libel;
• In Italy this misuse of the legal system is very widespread, rarely opposed, and is manifested above all through libel lawsuits. According to official data, every year thousands of journalists, bloggers, opinion leaders and human rights defenders are subject to lengthy and costly trials as a result of these lawsuits which end nine times out of ten with the acknowledgment that the accusations were groundless, specious, reckless and in many cases specifically formulated to intimidate the accused and hinder the right to information and freedom of opinion;
• This trend of this phenomenon has been documented in Italy by various sources; inter alia:

• in 2016, the Italian Ministry of Justice provided Ossigeno with data on the outcomes of the trials of the alleged perpetrators of these offence. (read here) These data refer to the period 2011-2015 and indicate acquittals of the accused in nine out of ten cases and disproportionate prison sentences (on average less than a year, but cumulatively more than a century in prison each year) in a significant number of cases (2.6%);
• in 2019, ISTAT (the “Italian Statistics Office”) confirmed the outcome of the trials already reported by the Ministry of Justice and confirmed the strong proliferation of these court proceedings, adding that lawsuits for libel had almost doubled in four years (Read here “In one year 9,000 lawsuits and 64 prison sentences” );
• from 2011 to 2022, the Observatory of “Ossigeno per l’Informazione” publicly documented in detail on its website Ossigeno.info, thousands of criminal and civil proceedings for libel, the intimidating and punitive effect of many of them on the journalists accused and put on trial despite having legitimately exercised their rights to report, criticize and satirise:
• In 2021 the Constitutional Court, after noting the punitive and discriminatory nature of the current Press Law and inviting Parliament to correct it, decreed the unconstitutionality of article 13 l. 47/48, limiting the circumstances in which the judge can impose a prison sentence. At the same time, the Court renewed its invitation to Parliament to systematically amend the laws on the press and on defamation in particular.

THE CRITICISM OF THE BILLS UNDER THE SENATE’S EXAMINATION

Penalties for defamation

The draft laws  n. 573 and no. 466 codify the abolition of the prison sentence. This constitutes a step forward. Also to be positively noted are the provisions envisaged by Legislative Decree no. 81, no. 466 and no. 573 which would extend the application of the discipline to online newspapers, television news and radio news; and the provision envisaged in article 1 of Law no. 573 which would assign the juridical competence on the case to the judge in the place where the newspaper is registered.

However, there are also some negative aspects. In particular, the hypothesis of an increase in fines raises concern. In fact, the Legislative Decree no. 466 would raise the minimum penalty of the fine, providing for sanctions in two ranges: from 5,000 to 10,000 euro and from 10,000 to 50,000 euro. Bill n. 573 – while lowering the maximum fine – would increase the amount of the minimum penalty, introducing two groups: from 2,000 to 5,000 euros and from 7,000 to 15,000 euros.

In this regard, we believe that the increase in financial  penalties, of any amount, goes against the interpretation of Article 10 of the constant and unequivocal jurisprudence of the European Court of Human Rights. The Court has repeatedly recalled how the penalties envisaged for defamation must take into account the impact they will have on the economic situation of the defendant, in order to prevent the fear of a disproportionate fine from having a deterrent effect – the so-called chilling effect – on the exercise of freedom of the press and of expression. Furthermore, such high monetary penalties and not commensurate with the offender’s economic status  would have a chilling effect on those with limited means, while they are or would be ineffective for those with generous financial resources. Therefore, there is the risk of a dynamic that would encourage the use of legal proceedings for the mere purpose of intimidation.

Therefore, Ossigeno per l’Informazione  invites legislators to reflect on the potential censorship effect that the excessive increase in monetary sanctions would have above all on small publishers and on the numerous journalists who work with low salaries and as freelancers.

Ossigeno per l’Informazione also points out that the punitive  nature of the reported proposed legislation  is aggravated by the provision for additional penalties  of disqualification from the profession and by the referral of the journalist guilty of libel  to the disciplinary bodies of the professional order.

And it is from this point of view that the proposal to reform the right to rectification by introducing the obligation to publish without the possibility of reply must also be considered. Finally, no proposal repeals Article 596 of the Criminal Code. (the substantial truth doctrine), an anti-democratic provision which has by now been inapplicable since 1971 following sentence no. 175 of the Constitutional Court.

The challenge to rash lawsuits

As for civil cases for defamation, all the  analysed  bills in question propose the introduction of provisions to combat reckless court proceedings. As regards the modification of article 96 of the Code of civil procedure, the most effective provision seems to be article 1 of the legislative decree n. 616.

It provides for the certainty of the imposition of compensation for damages against the plaintiff who appears to have abused the civil proceedings for defamation, thus creating an effective deterrent against rash disputes. In fact, according to this formulation, in cases where the bad faith or gross negligence of the person acting should be proven, the plaintiff would be sentenced – even ex officio – to the payment of a sum determined on an equitable basis and in any case not less than a quarter of the compensation claimed.

THE OSSIGENO PROPOSALS FOR THE MEDIA

The proposals of the non-profit association Ossigeno per l’Informazione (see) are inspired by the principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms, by the jurisprudence of the ECHR, by the principles affirmed by sentence n. 150/2021 of the Constitutional Court and by the most recent jurisprudence of the Supreme Court.

• In conformance with international standards on freedom of expression, Ossigeno proposes the decriminalization of the offence of defamation.
• In a subordinate way, it proposes redefining the offence itself, to distinguish between wilful defamation and negligent defamation, both to make the penalties more proportionate and to allow journalists to protect themselves with civil liability insurance against the financial consequences of any defamatory actions deriving from professional errors committed in good faith, as is often the case.
• the introduction of a specific sanction for anyone who manifestly abuses the right to sue. Expressly provide for the possibility of prosecuting the offence  of slander against the plaintiff whenever the falsity of the defamation accusation is documented in the course of a trial.
• Establish the new offence of “infamation” (mud-slinging) to punish, with sanctions similar to those for slander, those who:

1. a) abuse the right to information by knowingly disseminating false information about someone, in order to take advantage of them, to damage their interests, reputation, or image;
2. b) makes improper use of the right to information to incite hatred, violence, racial, ethnic and gender discrimination.

• Introduce the offence of “obstructing journalism activity” into the Italian legal system. This proposal has already been drawn up and published, thanks to the working group set up by the Rome Press Association and Ossigeno per l’Informazione, with the legal support of  the lawyer Andrea Di Pietro and reviewed by magistrates and constitutionalists. The objectives are essentially: (1) harsher penalties and certainty of punishment, (2) arrest – at least optional – in the act of committing a crime, (3) applicability of precautionary measures, (4) very quick legal proceedings  following the validation of the arrest.

This new offence would expressly and concretely protect the freedom of expression of  journalism. Journalism is understood here as a function of public interest, as a medium between the information itself and those who receive it whilst respecting the ethics of journalism. The introduction of this substantial criminal law is justified by the general social concern aroused by violent acts committed against a journalist. It is not a defence of a professional caste, but a form of greater protection for those who exercise a function of public interest, a specific and at the same time collective right, being combined with the right of citizens to receive information as sanctioned, among others, by article 10 of the ECHR. 

THE SUGGESTED TEXT FOR THE OFFENSE OF OBSTRUCTING JOURNALISM ACTIVITY –

“Anyone who, in order to limit or prevent the research, collection, reception, processing, control, publication or dissemination of information, opinions or ideas of public interest, uses violence, threats or fraud to the detriment of subjects carrying out the journalism activity, is punished with imprisonment from two to six years”.