Italy. The Viscardi case. A typical example of a reckless lawsuit

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Why the criminal proceedings against the journalist have been dismissed – Another victory for Ossigeno’s Legal Desk

OSSIGENO – 15th  November 2023 -After 4 years of investigation, the Rome court has dismissed a lawsuit for libel presented in 2019 by a member of CasaPound, an extreme neo-fascist organisation, against the journalist Alessio Viscardi. (Read here the Ossigeno article).

The Ossigeno Legal Desk, considering the case to be of general interest, in collaboration with Media Defence, covered the journalist’s legal expenses, entrusting his defence to the lawyer Andrea Di Pietro. The court deemed the accusations unfounded. Since the court’s  reasons are of great interest,  we are publishing a comment on them from the defence lawyer.

by Andrea di Pietro

We were recently notified of an instruction from the Rome General Prosecutor informing us that the Ossigeno Legal Desk had won another trial, that in defence of a journalist accused of defamation by a member of Casapound. The decision dates back to May 5th  2023 but we are only finding out about it now. But that’s ok. It is yet another success for our Legal Desk which has been operating for nine years thanks to the support of the English NGO Media Defence. Alessio Viscardi is the defended journalist and his story teaches us how a reckless complaint is made.

Reckless litigation is often confused with slanderous litigation. I deliberately use the generic term “litigation” precisely to avoid confusion between the civil trial and the criminal trial. Let’s try to speak generally at this moment.  When someone accuses a journalist in a reckless way that person is doing something different  than when he or she slanders him. It is important to establish this because accusing a journalist in a reckless way is serious but accusing him in a slanderous manner is something that reaches the maximum level of gravity. So what does reckless mean? Reckless means acting either in bad faith or with gross negligence. In brief  we already have remedies in the civil procedure code and in the criminal procedure code with respect to reckless accusations. Hence, the person involved in the reckless dispute acts with grave negligence or bad faith but does not have full awareness of the innocence of others. However, what distinguishes reckless litigation from slander is that in the case of slander the pursuant has full awareness of the innocence of others.

THE VISCARDI CASE – Alessio Viscardi is a video-maker journalist who went to film a CasaPound protest on the occasion of the assignment of a council house to a Roma family and triggering a  protest with the usual narrative: “Italians first”. In short, I’m not here to say what the cultural humus of this situation was. At a certain point a person, who later turns out to be close to Casapound, is heard shouting a series of very violent insults which I don’t want to repeat against this poor woman. At a certain point something is heard that the journalist interprets as “I’m going to rape you” – although on the audio it’s not clear. In reality the person in question didn’t say “I’ll rape you”, but said “you’re disgusing”, but in the excitement of the crowd it wasn’t clear. The article was titled “I rape you” and this person filed a criminal lawsuit complaining (querela) of defamation against him.

The above description is a typical example of a reckless lawsuit, because the plaintiff was fully convinced of the fact that he had not said the phrase “I will rape you”, but he acted in bad faith because he did not see or did not want to see the gravity of his conduct and the inconsequential nature and blamelessness of the journalist’s mistake and he still obstinately pursued a lawsuit in a fastidious way without even a minimum of self-criticism.

Even the judge who dismissed the defamation case against the journalist Viscardi seems to agree with this approach.

The magistrate writes that “in fact the phrase “I’ll rape you” erroneously attributed by the journalist is nevertheless inserted in a seriously offensive and aggressive context held by the complainant towards a Roma woman. It was the reprehensible behaviour which gave rise to the misunderstanding. The offended party has in fact uttered a series of offensive terms, namely “slut, disgusting, whore. You disgust, slut” and having published the expression “I’ll rape you” instead of the phrase “you disgust” does not significantly alter the readers’ perception of the particularly aggressive behavior carried out in that context by the complainant. Ultimately saying “I’ll rape you” and saying “you disgust”, in the same context  have the aim of verbally attacking and humiliating a person. It is essentially like pronouncing two abusive sentences since the first sentence, more than a threat, is a further expression of denigration of the Roma woman who, being a “whore” and a “slut” and “disgusting”, deserves to be raped”.

The Judge expresses in an impeccable way the meaning of a complaint which “appears” to be founded (since the sentence attributed to the agent was never actually said), but which in reality is not only not founded but is even reckless, i.e., pursued in bad faith or with gross negligence. Behaviour like this, placed in the context of the journalistic profession, produces intimidation, self-censorship, stress and many problems, including human ones, which, added together, heavily impact the freedom of the press, limiting it, discouraging it, making it more of a mission for daring journalists, a kind of tilting at  windmills, rather than, as it should be, a profession of great social importance, worthy of being carried out with serenity, without having to endure the annoyance of the usual reckless complaints.

Andrea Di Pietro