Background

In its Resolution 1920 (2013) on the state of media freedom in Europe, the Parliamentary Assembly of the Council of Europe requested an opinion from the Venice Commission on “whether the Italian laws on defamation are in line with Article 10 of the European Convention on Human Rights” (hereinafter ECHR).

The opinion assesses whether the Italian legal framework on defamation, including the defamation Bill adopted by the Chamber of Deputies on 17 October 2013, meet the European standards. Since the request of the Parliamentary Assembly was made with reference to the Sallusti case, the opinion places particular emphasis on defamation by the means of the media.

Standards

The prohibition of defamation raises the issue of the appropriate balance to be struck between freedom of expression, as protected by Article 10 ECHR, and the right to respect for private and family life, as protected by Article 8 ECHR. Freedom of expression carries with it duties and responsibilities which are of particular significance when the reputation of a named individual and the “rights of others” are at risk.

The opinion stands still by the following important aspects of the standards at stake:

•          the right to freedom of expression as an essential foundation of democratic society;

•          the right to protection of one’s reputation;

•          foreseeability of the norms restricting freedom of expression in order to protect reputation and the rights of others;

•          the press as public watchdog and the public’s right to receive information;

•          Public interest debate and the concept of responsible journalism

•          Differentiation between statements of fact and value judgments / Truthfulness

•          Nature and severity of sanctions / “Chilling effect” of sanctions

Context

Defamation is a criminal offence in Italy and, under articles 595-597 of the Criminal Code and article 13 on the Law of the Press no. 47/1948 (hereinafter the Press Law), penalties for defamation by means of the press may amount to imprisonment between six months and six years. While these provisions have been considered dormant in Italy, their application in a number of cases in recent years has raised concern in Italy and Europe.

In particular, the Sallusti case – where a 14-month prison sentence was imposed on a newspaper editor for publishing a defamatory article written by an anonymous columnist on a judge’s decision relating to the abortion of a 13-year old girl –, sparked protests in Italy and abroad. The Italian President subsequently commuted the prison sentence into a fine. In 2011 and 2012, three journalists and three newspaper editors were sentenced to imprisonment for defamation. In May 2013, three further journalists were sentenced to prison on defamation charges.

It is in this context that the Italian Parliament introduced a Bill in September 2012 proposing, inter alia, amendments of the criminal defamation provisions. The Bill was eventually rejected by the Italian Senate. A new Bill (hereinafter the Bill) was introduced before the new Italian Parliament in May 2013 and adopted by the Chamber of Deputies on 17 October 2013. The Bill is currently tabled for examination by the Senate.

Two judgments condemning Italy for violation of Article 10 of the ECHR in relation to defamation have been recently adopted by the European Court of Human Rights (Belpietro v. Italy and Ricci v. Italy) . In both cases, however, the Court found that the nature and severity of the penalty imposed, that is the prison sentence, even suspended, had a significant chilling effect and, in the absence of any exceptional circumstance justifying such a severe sanction, constituted a disproportionate interference with the legitimate aims pursued.

Conclusions

It is legitimate to restrict freedom of expression through defamation laws aiming to protect the right of reputation. Nevertheless, restrictive measures may not be overbroad and must conform to the principle of proportionality, and serve a pressing social need.

Civil defamation laws have a less chilling effect on freedom of expression than criminal laws, provided that the law is formulated in a way that excludes abuse by the authorities. Providing guarantees that those sued will be able to mount a proper defence is essential.

Prison sentences for defamation should be abolished in the absence of exceptional circumstances justifying such a severe sanction, and high fines should be applied with care to avoid deterring journalists or other commentators from contributing to public interest discussions.

The fundamental right to freedom of expression requires a strong scheme of legal defences which can be used against defamation claims. The legal defences in defamation cases concern the truth of statements, the right to express an opinion, the public interest in an open, free, political debate, as modern democracies depend on open and transparent discussions about potential abuse of power and corruption. Political speech is almost inviolable under ECHR case law.

Public authorities must respect the right of journalists to disseminate information on questions of general interest, including through recourse to a degree of exaggeration or provocation, provided that they act in accordance with responsible journalism.

Criminal defamation provisions currently in force in the Italian legislation do not fully meet the European standards on freedom of expression.

The Bill which is presently under discussion in the Italian Parliament undoubtedly represents a welcome effort to improve, modernise and bring the Italian legal framework pertaining to defamation into conformity with the ECHR requirements. Substantial improvements are introduced concerning the system of sanctions. In particular, the abolishment of the prison sanction for defamation is a significant step forward, demonstrating a clear commitment to giving a constructive response to the recent judgments of the Strasbourg Court against Italy. The limitation of the use of criminal provisions by strengthening the right to reply and rectification should also be commended. The speedy adoption of the above proposals by the Italian Parliament is therefore strongly recommended.

The defences of truth, public interest and responsible journalism, already largely recognised by the Italian case law, should be explicitly introduced in Article 595 of the Criminal Code, and Article 596 should be reconsidered, in the light of the established Constitutional case law.

Making the requirement of proportionality of sanctions and the criterion of the economic condition of the journalist more explicit in the defamation provisions would, alongside the general proportionality principle in the Italian legal system, help avoid the application of excessive fines and ensure the proportionality of damage awards. Also, the introduction of a temporary ban on the exercise of the journalistic profession for repeated defamation should be reconsidered, as it may lead to media self-censorship and may have a chilling effect on investigative journalism.

Political debate as well as fair and responsible criticism against public figures as part of the public interest debate should enjoy the highest protection. The abolition of paragraph 4 of Article 595 is welcome. Articles 278, 290bis and 291 of the Criminal Code should be reconsidered.

The Venice Commission encourages the Italian authorities to finalise the legislative process which is underway as regards the legislation on defamation. In addition to abolishing the imprisonment sanctions, it recommends that, prior to the final adoption of the amending Bill, the recommendations contained in the present opinion both with regard to the amendments proposed and to the relevant provisions of the legislation in force be carefully considered.

The Venice Commission remains at the disposal of the Italian authorities should they need any assistance.

   Text of the opinion CDL-AD(2013)038