Off with the mask! The Supreme Court decision on imprisonment for defamation

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The Court’s postponement for a year places the Italian government and parliament in default and forces all the parties involved – journalists, editors, politicians, and trade unionists – to say whether they are truly in favour of the abolition of the penalty of imprisonment or simply pretend to be.

With the decision to postpone for a year the judgement on the constitutional legitimacy which could have outlawed the rules for imprisonment for up to six years for libel, the Supreme Court appears to have disappointed many expectations, but in in reality it has shown a sign of great institutional balance and political finesse, by respecting the rôle of the legislative branch when it is examining bills on the matter in question. It was not impossible to predict that this would be the Court’s choice. There was a first-rate model and precedent: the sunset provision. The Supreme Court had granted twelve months to both  Chambers to decide. The year passed without any parliamentary decision. And so it was the constitutional judges who decided.

We have to wait for the reasons to fully understand the choice of the Supreme Court judges but already from its Press Office statement it would seem clear that, in substance, the Supreme Court has reaffirmed the need and the urgency to drastically reduce the use of prison sentences, finally adjusting Italian legislation to European Conventions, Treaties and jurisprudence. On this point and in this sense, the Court has placed in default a legislative body which for twenty years 

 has been dribbling around, debating without ever deciding, as if it were a clique of scholars. The key phrase of the press release – after emphasizing that it is a question of balancing the freedom of expression, of thought and the protection of the individual’s reputation – is this: “A remodelling of this balance, now urgent in the light of the indications of the jurisprudence of the European Court of Human Rights, is primarily up to the legislative branch”. Those who have ears to understand, understand: the inspiration for the new legislation must be the jurisprudence of the ECHR. This  means not only the repeal of imprisonment, but also civil penalties and fines proportionate to the economic capacity of the journalist and the publisher. These factors will be the basis for the decisions of the Constitutional Court if the Italian Parliament remains inert.

The opinion of the Court has also placed in default the government which  now has to choose between the role of Pontius Pilate and that of active protagonist who, while respecting the autonomy of Parliament, carries out a constant pro-active attitude in fulfilment of the positive obligations that the  international treaties entail.

Should we, therefor, conclude that within a year Italy is certain to  have a new, clearer regulatory and jurisprudential framework, more favourable to journalists and the freedom of information?

There is some doubt about that and it is clear why. In over twenty  years we have not managed to eliminate this ignominy of imprisonment for libel despite all the appeals, despite all the solemn commitments and proclamations of good will and good intentions. Why?

Certainly not because of lack of time or because a certain party, a certain political majority has blocked progress. It has been the consequence of an almost unanimous political will. Parliament has not abolished imprisonment for journalists because most of the political forces have always defended it, postponing decisions or proposing, as an alternative to prison, even harsher penalties and sanctions, leaving the drama of vexatious lawsuits and reckless civil disputes for merely intimidating purposes fester.

But it would be unfair to place all the blame on the parliamentarians. True, parliament and governments have played a part in hiding their true intentions. But other protagonists have done the same. Many journalists, editors, trade unionists, defenders of press freedom, party leaders, magistrates, mayors, public administrators, entrepreneurs and opinion leaders who, sometimes openly, more often far from microphones, have stated clearly that in Italy, for publishers (for the publishers’ balance sheets?) punishing libel with prison is much better than fines and it is good to hold on to it. Word for word.

They are wrong. But it seems that they are deeply convinced and ultimately they will decide the game, to strongly influence the outcome by justifying and making acceptable the government’s disinterest, the parliament’s dribbling, and the belated intervention of the Supreme Court.

 “So it is (if you think so)” as Luigi Pirandello would say. This is how it is and will still be in twelve months, if in the meantime we have not been able to expose the fake advocates and their alleged good reasons; if we will not be able to make clear that even in Italy the reputation of individuals, the freedom of the press and the right to information can be defended at the same time and with equal dignity.

ASP GFM

Read also the opinion of the lawyer Andrea Di Pietro

Read more about prison for defamation

Listen the recording of the Supreme Court hearing