Consult: defamation in the press, the warning to the Legislator expires and the sentence is headed

After inaction at the end of life, politics also allowed the year given to Parliament by the Constitutional Court to expire in order to balance the freedom of expression of thought and the protection of the person’s reputation from a regulatory point of view. Tomorrow the warning with term granted to the Legislator in the order 132/2020 of the Consulta ‘Offenses of defamation in the press and application of the prison sentence’ expires, according to which the prison penalty for the crime of defamation in the press is incompatible with our Constitution and with the European Convention on Human Rights (ECHR). By Wednesday, the Court will therefore meet in a public hearing as the Legislator has not approved a new discipline. The question of constitutional legitimacy had been raised with two orders by the Courts of Salerno and Bari. The Court had postponed, to the public hearing on June 22, 2021, the discussion of issues of constitutional legitimacy The Court of Salerno (called to rule on liability of a journalist and the editor-in-chief of a newspaper, the first for the conduct of defamation in the press, pursuant to the provisions in question and the second for that of failure to check the content of the newspaper, pursuant to art.57 of the Criminal Code) raised issues of constitutional legitimacy of art. 13 of the law 8 February 1948, n. 47 (Provisions on the press) and art. 595, third paragraph, of the penal code. The first contested provision punishes libel in the press consisting in the attribution of a specific fact with imprisonment from one to six years together with a fine of not less than five hundred thousand lire (258 euros). The art. 595, third paragraph, of the Criminal Code punishes defamation aggravated by the use of the press, any other means of advertising or public deed with imprisonment from six months to three years or a fine of not less than 516 euros. The profiles of unconstitutionality highlighted in the remission order of the Salerno judge would be with respect to articles 3, 21, 25, 27 and 117, first paragraph, of the Constitution, the latter in relation to article 10 of the ECHR. At the heart of the complaints is the application of a prison sentence, albeit suspended, to the crimes of defamation in the press, a provision which, according to the consolidated jurisprudence of the European Court of Human Rights, is generally incompatible, as excessive and disproportionate, with the freedom of expression protected by art. 10 of the ECHR as well as by art. 21 of the Constitution. Articles 3 and 21 of the Constitution are assumed to be violated because the referring party believes that the provision of a prison sentence is unreasonable and disproportionate to the freedom of expression protected by article 21 of the Constitution. Finally, the imposition of a custodial sentence is detrimental to the principle of offensiveness and the principle of the re-educational purpose of the sentence referred to, respectively, in articles 25 and 27, third paragraph, of the Constitution. The Court of Bari raises with reference to art. 117, first paragraph, of the Constitution, in relation to art. 10 of the ECHR, the question of the constitutional legitimacy of art. 13 of the law n. 47 of 1948, in conjunction with art. 595, third paragraph, of the Criminal Code in the part in which it sanctions the crime of aggravated defamation, committed in the press and consisting in the attribution of a specific fact, with the cumulative penalty of imprisonment from one to six years and a fine of not less than 258 euros, instead of alternatively. The profiles of unconstitutionality also for the Court of Bari, as for that of Salerno, concern the fact that the provision of a prison sentence for the crimes of defamation in the press would be in contrast with the consolidated jurisprudence of the ECtHR Court since, except in cases exceptional, incompatible with freedom of expression. The censored norms: L. February 8, 1948, n. 47 Press provisions. Article 13, Penalties for defamation. In the case of defamation committed through the press, consisting in the attribution of a specific fact, the penalty of imprisonment from one to six years and that of a fine of not less than 500,000 lire are applied. In the Criminal Code: Article 595. Defamation. If the offense is carried out by means of the press or by any other means of advertising, or in a public document, the penalty is imprisonment from six months to three years or a fine of not less than 516 euros.