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Defamation. Boev, reform is not just about journalists

According to the expert from Article 19, Italy should worry because it now serves as an excuse for countries that maintain backward and authoritarian laws

Mr Boyko Boev, legal expert from Article 19 (a non-governmental organization based in London and active in Europe, Africa, Asia and South America), speaking at the debate on the reform of the law on defamation held in the Senate on February 6th, 2014, stated that the proposed libel law approved by the lower House contains a few steps forward, but numerous adjustments remain to be done in order for the law to better reflect international rules and standards. He also criticized the Italian approach to the matter, which in his view reveals a narrow sightedness on the problems of freedom of expression.

Last November, the Organization for Security and Cooperation in Europe (OSCE) commissioned the lawyer Boev for a detailed analysis of the text of the reform under scrutiny by the Italian Parliament. Mr Boev also participated to the campaign of Article 19 in the United Kingdom, which, following the mobilization of the civil society, has led Parliament to reform the law and eliminate criminal provisions for offences of defamation.

As Mr Boyko began: “my intervention’s aim is to give you an overview of the international debate on the reform of libel laws. There were some demeaning comments about the Italian situation by the European bodies. And it’s something that you should take into serious consideration, because Italy is now one of only two European countries where journalists are sentenced to prison terms for defamation. The other country being Belarus”.

PRISON FOR JOURNALISTS – “There have been several cases of journalists sentenced to prison terms in Italy: three in 2011, four in 2012, and the Sallusti case in 2013 attracted much attention from abroad”, he added. “Someone pointed out that the sentences handed down in Italy are often criticized by the European Court in Strasbourg for violations of Article 10 of the European Convention of Human Rights. A pretty shocking case dates back to a few months ago. Italy was mentioned in the last report by the International Press Institute amongst one of the countries where in 2013 there were (nine) cases of criminal convictions of journalists to be considered particularly shocking. The other cases have occurred in Russia, Serbia, Macedonia, Azerbaijan, and Greece. To end on that list is quite shameful. The Italian episode being mentioned refers to the sentencing to two years in prison for a newspaper director, Mr Francesco Gangemi, who is 79 years old.”

INTERNATIONAL RESPONSIBILITY – In countries such as Kazakhstan and Azerbaijan the political class did promise to decriminalize libel, only to recant later, scuppering the reforms that had already started, and using as an excuse the fact that in the democratic Europe Italy continues putting journalists in jail for defamation. You should therefore consider the international responsibility of Italy”, Mr Boev explained.

POSITIVE ASPECTS OF THE REFORM – According to the expert, there are three positive aspects of the text approved by the Lower House: “the abolition of imprisonment is certainly an important fact. Another is the introduction of financial penalties for the perpetrators of defamation. The other aspect is the removal of aggravating circumstances in case of defamation of public officials”.

NEGATIVE ASPECTS – However, the negative aspects are what the lawyer focuses on, explaining the differences in the approach between the on-going reform in Italy and the one approved in the United Kingdom, which was the first of a number of countries to have decriminalized libel.

CRIMINAL COURTS – As the lawyer continues, the first negative aspect is the fact that defamation continues to be an offense under the Criminal Code. As Mr Boev explains, “in 14 of the 57 countries belonging to the OSCE, defamation was decriminalized. There are countries like the United Kingdom, Ireland, Ukraine and Moldova, which are very different from each other, but which decided to protect reputations without resorting to criminal measures. It means that this is possible. Moreover, the sanctions that need to be applied must also be proportionate, taking into account the income of the journalist and the media outlet sued alongside him.”

DECRIMINALIZATION AS A POLITICAL ACT – According to the representative of Article 19, it is wrong to think that the different approach between Italy and the United Kingdom depends on a cultural difference. “The impetus that led the United Kingdom to reform – he said – was political”. The UK wanted to be seen as a country that promotes freedom expression. Indeed, after the national reform, the UK was quite active so that its former colonies, and now independent states, would do likewise. Mr Boev thus invited Italy to consider reform as a political act to be used to boost the country’s image, also exploiting the auspicious occasion of the Presidency of the Council of Europe that Italy will take over in June. “It would be an extraordinary political act to abolish defamation as a criminal offense”, he said.

ABOLISH THE PROHIBITION TO WORK – According to Mr Boev, another point that needs correction is relative to the prohibition to practice the profession that can be ordered by the court, and which is considered a measure of intimidation under the proposed legislation now under discussion. The only other country to hold such sanctions, he said, is Russia.

NO SPECIAL PROTECTION FOR INSTITUTIONS – The third issue on which the expert drew attention on is the necessity to repeal the crime of insulting the President of the Republic, the Nation and the Constitutional Bodies. “In the UK you can insult the queen. In this country you can not insult the President”, Mr Boev pointed out.

NOT JUST FOR JOURNALISTS – The lawyer then explained the difference between the processes that have sparked the debate on defamation in Italy and the United Kingdom. On the other side of the Channel, the press is hated by the public opinion, he said, and the reform was not conceived with the press in mind, but rather with the more general freedom of expression of individuals. Indeed, civil society organizations, academia, artists and intellectuals, who were tired of being intimidated by those who use the complaints to censor criticism and unconventional ideas, carried the promotion of decriminalization forward. The examples range from cases of pharmaceutical companies set against scientists, to cases where lawsuits where launched against critical consumers, to yet other cases where historians and intellectuals are being juxtaposed.

According to the lawyer, however, the Italian reform is seriously limited because it does not address these issues, and because it is more concerned with penalties than with the principles that need to be protected; nor does it address the problems related to the web and the responsibilities of Internet service providers. “In Italy, the main purpose of this law is to limit the effects of the sanctions. Britain, on the other hand, made it difficult to prosecute those who express themselves in the public interest.”

“To conclude, I recall the words of the President of the Senate, Mr Pietro Grasso: defamation should not be seen as simply a case concerning the regulation of the media, but as a fact about democracy. Because the punishment of defamation does not concern journalists only, but the opportunity for every citizen to participate to the political life of the country” Mr Boev said.

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