Being a journalist in Italy may have occupational hazards, but having to go to prison in your own country because of an article you wrote should not be one of them. However, Italy, a founding Member of both the Council of Europe and the European Union, still punishes defamation through the medium of the press (diffamazione a mezzo stampa) by a prison term.
The penalties are harsh: article 595 of the Italian Penal Code punishes such crimes by six months up to three years in prison, or by a fine which cannot be less than €516 (more or less $675). The penalties are increased if the victim is a political figure, a concept that might surprise United States journalists who generally receive greater protection against defamation liability when writing about politicians.
Three Recent Cases
The law is alive and well enforced. An article written by journalist Orfeo Donatini, titled “Pura razza SüdTirol” (The pure race of South Tyrol), was published in 2008 by the newspaper Alto Adige. It reported that Seven Knoll, a Representative at the Parliament of South Tyrol and the leader of Süd-Tiroler Freiheit, a South Tyrol separatist party, was being investigated by the police for his possible ties with neo-Nazi groups. The source of the information, which had first been published by the national weekly L’Espresso, was a confidential police report.
Knoll did not ask for the article to be corrected, but instead sued both Donatini and the former director of Alto Adige, Tiziano Marson, claiming he had been defamed by the article. The defendants were, in the first instance, acquitted by the Bolzano Court in South Tyrol. Knoll then appealed to the Supreme Court, which quashed the first judgment, and referred the case back to the Bolzano Court. The Bolzano Court held on June, 20, 2012, that both journalists were guilty of defamation and sentenced them to four months in prison and a €15,000 fine.
Reacting to his sentence, Donatini said that “this sentence drives the journalist to self-censorship, forcing him to think more than once before publishing any news."
Knoll was also criticized for failing to invoke article 8 of the Italian Press law, which provides for a right to reply in the newspaper or magazine which published the alleged defamatory comment. The FNSI, the national federation of the Italian press, commented that “[t]he timely publication of denials, responses, adjustments, and corrections, as stated by Article 8 of the Press law, should be sufficient… to prevent any judicial action, may it be criminal or civil. The appeal to the Judiciary, which is now permanent, for alleged defamation and consequently for alleged damages may greatly limit the right to press freedom and the exercise of journalism.”
This case is not an anomaly. Last Wednesday, the criminal chamber of Italy’s highest court, la Corta di Cassazione, confirmed the 14-month prison sentence for libel given to Alessandro Sallusti, the editor of Il Giornale, a newspaper owned by the Berlusconi family. Sallusti then resigned from his position, stating that he had no intention to seek alternatives to his prison sentence. The story – concerning a 13-year old girl who had undergone an abortion, and later suffered a nervous breakdown – was picked up widely by Italian media. Il Giornale published an article on February 2007, signed by ‘Dreyfus,’ which virulently denounced the position of the parents, the M.D. who performed the abortion, and the judge who authorized the procedure in lieu of the absent father. The author even expressed regrets that the death penalty was not legal in Italy so that they could all four be sentenced to death. The judge sued for libel and won. The article was in fact written by Renato Farina, currently a Representative elected under the banner of Berlusconi’s party.
In May 2011, the Court of Chieti sentenced two journalists, Walter Claudio and Nerone Lattanzio, from the Pescara newspaper Il Centro. The journalists had reported in November 2007 that a local politician was being investigated by the Guardia di Finanza, the Italian financial police. The mayor had sent a letter to Il Centro stating that he was merely being audited as a value-added-tax number holder. The newspaper published the letter, but the mayor nevertheless filed suit for defamation. Claudio and Lattanzio were sentenced to one year in jail, with no parole option for eight months. Luigi Vicinanza, at the time the director of publication of the newspaper, was given a €12,000 fine for damages.
Call to Reform
The Alessandro Sallusti case has raised quite an outrage in Italy. Paola Severino, Italy’s Minister of Justice, met with the President of the Republic, Giorgio Napolitano, on September 27th. They both "agreed on the need for changes in libel law, in order to take into account the jurisprudence of the European Court in Strasbourg, not excluding possible effects on the Sallusti case." Meanwhile, Mr. Sallusti is facing another libel trial which will start on December 5 in Milan, resulting from an article published by the newspaper Libero.
Following the sentence in the Il Centro case, Article 19, a Human Rights organization based in London, sent letters to both chambers of the Italian Parliament asking them to amend the Penal Code with respect to defamation, stating that reforming the Italian defamation law was long overdue.
In its statement, Article 19 mentioned that in 2006 the United Nations Human Rights Committee (UNHRC) had expressed concerns about defamation being punishable by imprisonment in Italy. As early as 2004, the UNHRC had encouraged Italian authorities to pursue ending incarceration for defamation, noting at the time that journalists had rarely been imprisoned, and that a bill abolishing prison terms for defamation was discussed at the time in the Italian Parliament.
In August 2012, following the Donatini case, Article 19 again sent a letter to the President of the Italian Senate and the President of the Italian Chamber of Representatives, expressing its concerns that Italy still punishes defamation by imprisonment, and called for an immediate answer from the Italian legislature.
The View of the Council of Europe
Article 19 also quoted in its statement Resolution 1577 (2007) of the Parliamentary Assembly of the Council of Europe towards decriminalization of defamation, calling on the Member States to “abolish prison sentences for defamation without delay.” Article 10 of the European Convention on Human Rights (ECHR) guarantees freedom of expression, and Resolution 1577 reminded the Member States that such protection must be granted “not only of 'information' or 'ideas' that are favorably received or regarded as inoffensive or as a matter of indifference, but also of those that offend, shock or disturb,” quoting the European Court of Human Rights in the 1976 Handyside case.
Five years after the publication of Resolution 1577, defamation is still punishable in Italy by prison terms, and is still enforced by Italian courts. However, unlike the 1948 Universal Declaration of Human Rights, of which article 19 protects freedom of expression, the ECHR is enforced by an international court, the European Court of Human Rights based in Strasbourg. Article 19 noted in its 2011 statement that “the jurisprudence of the European Court of Human Rights has repeatedly ruled that imprisonment for defamation is a disproportionate restriction on journalists’ right to freedom of expression.”
Jurisprudence of the European Court of Human Rights
The Grand Chamber of the European Court of Human Rights ruled in 2003 in Perna v. Italy that there had been no violation of article 10 of the ECHR in a case filed by a journalist who had been found guilty of defamation through the medium of the press by the Italian courts. The defamation claim related to the publication of an article questioning the integrity of a public prosecutor because of his link with the Communist Party; the journalist was sentenced to a fine and costs.
The judges in Strasbourg reminded the parties that, if the second paragraph of article 10 of the ECHR indeed allows for some restrictions to freedom of speech and penalties “as are prescribed by law and are necessary in a democratic society,” it is nevertheless the Court which is “empowered to give the final ruling on whether a 'restriction' is reconcilable with freedom of expression as protection by Article 10” (Perna at 39). In doing so, the Court determines whether the interference on speech was “proportionate to the legitimate aims pursued.” The Court also takes into account the nature and the severity of the penalty to assess whether this interference is proportionate.
In Perna, the Court found that Italy had interfered with the journalist’s freedom of speech, but the interference was not found disproportionate by the Strasbourg court. Note, however, that the Court might well have ruled differently if the journalist had been sentenced to prison.
Indeed, six years later, the European Court of Human Rights held in Kydonis v. Greece that article 10 of the ECHR was violated by the sentence of a Greek journalist to a five-month prison term convertible to a fine, based upon an allegedly defamatory article against a local politician. The Court stated that it “considers that a prison sentence for an offense committed in the field of the press is only compatible with journalistic freedom of expression guaranteed by Article 10 of the Convention in exceptional circumstances, such as when other fundamental rights have been seriously impaired, as in the case, for example, of the dissemination of hate speech or incitement to violence” (at 35).
As the facts in Kydonis are very similar to the two Italian cases discussed at the start of this post, there is little doubt that the Court would find that Italy had violated article 10 if these two cases were to make it to the Strasbourg court.
Sources of the Journalists also Risk Prison Sentences
The Donatini case may also implicate protection for a journalist's sources. Fabrizio Franks, the Chairman of the Association of Journalists of the Trentino-Alto Adige, noted that "[t]he reasons for the decision [of the Bolzano Court in the Donatini case are] not yet known. If it confirms that the sentence was taken because of an alleged misuse of a [police] document, this would be the end of the job of a journalist," adding that such a document can be confidential, but is still in the public interest.
In this particular case, it appears that a police document had been leaked to the press. Article 326 of the Italian Penal Code punishes with imprisonment from six months to three years, a “public official or a public servant who, in violation of the duties related to his functions or his service, or otherwise abusing his quality, reveals information related to his office, which must remain secret, or in any way facilitates its knowledge.” If the person who leaked the document had been identified, she might have shared a prison cell with the journalists who reported this document to the public. Not a pretty poster image for a democracy, and far away from sunny beaches and gondolas.
Marie-Andrée Weiss is a solo attorney admitted in New York, and her admission is pending in France. Her practice focuses on intellectual property, privacy, and social media law. She frequently writes on these topics and on European Union law.