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Defamation. Also the Council of Europe says this reform is no good

The Council of Europe passed a severe judgement and accurate recommendations in a document that examines the bill passed by the Chamber of Deputies, and which is now being debated in the Senate

The Council of Europe believes that the Italian legislation on libel does not comply with European law, and considers inadequate the proposals contained in the bill passed by the Chamber of Deputies on October 17, and which is currently before the Senate. The OECD and the UN Special Rapporteur for Freedom of the Press have issued a similar negative judgment in recent weeks.

According to the “opinion” expressed officially in a document of the Venice Commission, the advisory body of the Council of Europe which specializes in constitutional matters and is entrusted to carry out a thorough screening of the laws in force and of the proposals under discussion, “the penal laws on defamation now in force in Italy do not fully comply with European standards on freedom of expression”.

THE RECCOMENDATIONS – To gather information, the group of experts of the Venice Commission has recently visited our country and carried out audits of management authorities and has acquired, among other things, the opinion of Ossigeno per l’Informazione on the effects of the legislative framework on the work of journalists and the limitations that current the legislation has on freedom of the press and expression.

After having gathered all the necessary documentation, the Commission issued an articulated judgment full of advice and recommendations, mainly addressed to Parliament. In particular, the Commission encourages Parliament to make some substantial changes, which can be summarized as follows:

Decriminalize. Only by trusting entirely in the Civil Code for demands of restoration of one’s reputation it is possible to avoid a chilling effect on journalism and information;

Introduce in art. 595 of the Criminal Code, which punishes defamation, explicit rules for the protection of the truth, the public interest and responsible journalism;

Amend art. 596 of the Criminal Code to allow those accused of defamation to verify their assertions;

Abolish paragraph 4 of Article 595 and revise Articles 278, 290bis and 291 (which deal respectively with offenses against the “body politic, administrative or judicial” of the President of the Republic and the Nation) of the Criminal Code to protect political discussion and the debate on public interests;

Reduce the penalties and make them proportionate to the economic capacity of the author of the article and the publisher. As the Commission writes: “the severity of the sanctions is a matter of serious concern”. As such, it should make the requirement of proportionality of sanctions more explicit in order to avoid the application of excessive penalties and ensure that the compensation for damages is fair;

Emphasize the responsibility of publishers compared to that of journalists, for what concerns compensations: this is particularly important, the Commission says, in order to protect the journalists of smaller news outlets, which are “particularly vulnerable” relative to larger companies. For them, in fact, “the threat of heavy fines and compensation represent a deterrent” to inform freely;

Eliminate the power of the court to order a temporary ban on the exercise of the journalistic profession for those who have been convicted several times for libel. According to the Commission, such decisions are the responsibility of the disciplinary bodies of the professional category, and the intervention of the court should be excluded to avoid reporters and newspapers to resort to self-censorship;

Extend the obligation of professional secrecy, taking into account that to reveal the sources of fiduciary news “could be considered an interference with Article 10 of the ECHR (European Convention on Human Rights, and specifically of the freedom of expression).” Currently, the Code of Criminal Procedure allows a judge to resort to this power whenever it considers it necessary in order to prove the offense at hand;

The abolition of detainment is a positive evolution – as the opinion of Venice Commission reads: “the bill currently being debated in Parliament is undoubtedly an effort to improve and modernize the Italian law on defamation, and conform to the requirements of the European Convention on Human Rights”. In particular, the abolition of prison is considered “a significant step forward”.

Also, the strengthening of the right of reply and rectification, accompanied by the introduction of limits on the use of criminal law measures, are indeed another positive development. As much as the introduction of an upper limit to the amount of fines that can be imposed.

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