Defamation in the press, Consulta: jail only in cases of exceptional gravity

The Constitutional Court today examined the questions raised by the Courts of Salerno and Bari on the constitutional legitimacy of the prison sentence provided for defamation in the press, by contrast, inter alia, with article 21 of the Constitution and with article 10 of the European Convention on Human Rights. The issues returned to the Court’s examination one year after ordinance number 132 of 2020 which urged the legislator to undertake an overall reform of the matter. Pending the filing of the sentence, the Press Office announces that the Court, having acknowledged the failure of the legislator to intervene, declared article 13 of the law on the press (number 47 of 1948) unconstitutional, which necessarily triggers, in the event of conviction for defamation in the press carried out through the attribution of a specific fact, imprisonment from one to six years together with the payment of a fine. On the other hand, article 595, third paragraph, of the Criminal Code was deemed compatible with the Constitution, which provides, for the ordinary cases of defamation carried out by means of the press or another form of advertising, imprisonment from six months to three years or, alternatively, the payment of a fine. In fact, the latter provision allows the judge to sanction only cases of exceptional gravity with a prison sentence. Moreover, the need for an overall intervention by the legislator remains current, capable of ensuring a more adequate balance – which the Court does not have the tools to carry out – between freedom of expression of thought and protection of individual reputation, also in light of the ever greater dangers. connected to the evolution of the means of communication, already highlighted in ordinance 132. The sentence will be filed in the coming weeks. “The sentence of the Constitutional Court has a historical significance. The Council, in fact, sanctions the constitutional illegitimacy of the prison sentence for journalists as provided for by article 13 of the Press Law (47/48). Equally important is the recall, with reference to Article 595 of the Criminal Code, the consolidated jurisprudence of the European Court of Human Rights, which admits the prison sentence only in the most serious cases of defamation committed with incitement to violence or hate speech “affirm, in a note, Raffaele Lorusso, secretary general of the National Federation of the Italian Press, and Claudio Silvestri, secretary of the Union of Journalists of Campania. “At this point – they continue – however, the intervention of the Parliament becomes fundamental, called to develop a reorganization legislation, a task which, up to now, he has always evaded, forcing the Council to intervene. It is a victory for the journalists’ union , whose lawyers have raised the objection of unconstitutionality before the Court of Salerno. The work must continue to ensure that the whole matter is regulated by Parliament by finding the right balance between the freedom of expression of thought and the protection of the individual sphere of each citizen “.” The Constitutional Court has done its part by bringing the Italy in the wake of Strasbourg jurisprudence – comments Carlo Verna, president of the National Order of Journalists – we are satisfied the turning point is historic because the nightmare of prison in the ordinary way vanishes, while the hypothesis of exceptional gravity is residual and begins in concrete to draw the distinction between fault and willful misconduct that can be better defined when there is politics, the Lancelot of this affair. We have never been eight. Thanks, however, to all those who have raised the issue and thanks also to the lawyer Giuseppe Vitiello who sponsored the reasons for the National Order of Journalists “. For Emiliano Fittipaldi, deputy director of ‘Domani’, this is” an important step forward but not definitive, in the sense that I believe there are not many Western countries that foresee a prison for journalists. However, this is a purely ethical and legal question, because no journalist is really afraid of ending up in prison in Italy, but what I want to say is that the pressure on the press is done more than through defamation, therefore the criminal offense, through civil complaints “.” That is the real and concrete gag to the press – observes Fittipaldi – because when you build a system whereby the jurisprudence also accepts reckless disputes, and therefore there is no risk in asking for millions and millions euros to a journalist, because at most they are not accepted but you don’t pay the penalty, especially on small publishers, on freelancers, on journalists who work in the province in the most difficult areas, that is a way to silence them, much more than defamations “. Fittipaldi then comments:” Very happy, therefore, that the Council has taken this step forward, but I hope that Parliament will move and accelerate some bills, including qu it of Senator Primo Di Nicola, who have remained on a dead end and which instead would finally allow to limit the use of reckless civil cases against journalists. For now, however, nothing has been done, because it is better for politics to keep this weapon against the freedom of the press “.” The decision on defamation? The Consulta could only take it. Politics would never have done it because it hates journalists “, says to Adnkronos the director of Libero Alessandro Sallusti, the best known of the Italian journalists who have been arrested for defamation, a case that caused enormous uproar.” With this decision not I would have ended up in “, observes Sallusti, who recalls:” When there was my case, the Senate met indefinitely but no agreement was found in the majority, and not for political reasons. There was no reason why politicians enjoy seeing journalists in prison. Because they are their watchdogs, not for ad personam reasons of course … “. According to the director of Libero,” Parliament would never have been able to make such a reform. Of course, now he will have to take note of it but he will do so in his own time and reluctantly “. As for the one identified today by the Constitutional Court,” it is a solution similar to the one that Schifani had prepared as President of the Senate, it was called the ‘saving law -Sallusti ‘or something similar and more or less the text was that. But there was nothing to be done. And even in the center-right, it wasn’t just the ‘bad’ left “.