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Defamation bill. In the Senate only a few changes. Reckless lawsuits will be punished

Other novelties include the right to be forgotten and the corrections on the web: and these are worrying. Now the text will have to go back to the Lower House

The bill on libel approved by the Senate after two short sessions (170 ayes, 10 nays, 47 abstentions) will go back to the Chamber of Deputies for a second reading. The Senate has introduced some changes, not all of these improvements, to the text approved by the Lower House on October 18th, 2013, providing for the abolition of imprisonment for convicted journalists.

UNRESOLVED ISSUES – The new text accepts only in part the calls by European institutions to the Italian authorities to align the Italian legislation to European case law. This would have required to decriminalize the offense, to make the penalties proportionate to the economic capabilities of the condemned, to prevent the instrumental use of lawsuits to intimidate, to take all the necessary measures to prevent that the mere risk of going to trial produces a chilling effect on information held in the public interest. From this point of view, the updating of standards that date back nearly seventy years appears like a missed opportunity for parliament.

FRIVOLOUS LAWSUITS – The most important positive change introduced by the Senate is the possibility of deterring those who make use of instrumental, unfounded, baseless, or frivolous lawsuits: if the Lower House will confirm this text, both civil and criminal courts, when these will issue a judgment of acquittal for a journalist sued, they can simultaneously condemn the plaintiff “to pay to the applicant an equitable compensatory sum.”

This important change was introduced following the proposal of Senator FeliceCasson, who had expressed the order of magnitude of compensations “equal to up to a tenth of the amount claimed by the plaintiff.” But he had to let go of this point following the request by the rapporteur Rosa Filippin (Democratic Party) and by other groups that might otherwise have voted against. The text that passed the Lower House already provided that the frivolous plaintiff could be ordered to pay a sum to the CassadelleAmmende (Fund of fines).

HOW DOES THE LAW CHANGE – Here are two changes introduced in Article 4 of the bill:

(Amendment to Article 96 of the Code of Civil Procedure) – 1. After paragraph 1 of Article 96 of the Code of Civil Procedure the following is inserted: “1-bis. In cases of defamation committed by means of the press or of radio and television broadcasting, where there is evidence of bad faith or gross negligence by those who acted in court for civil damages, at the request of the defendant, the court, through the judgment rejecting the question, can condemn the actor, in addition to the costs referred to in this Article and in Article 91, to pay to the applicant a compensatory and equitable sum.”

«After paragraph 3 of Article 427 of the Code of Criminal Procedure, the following is inserted: “3-bis. In pronouncing a judgment whereby the crime does not exist or the accused has not committed it, if the frivolousness of the lawsuit is attested, at the request of the defendant, the court may order the plaintiff, in addition to the provisions of the preceding paragraphs, for an equitable compensation sum.”».

BLOW FOR ONLINE NEWSPAPERS – More news seem negative. Among these the extension of fines of up to ten thousand euros for “registered online newspapers”, approved following the proposal by the Five Star Movement, which is already talking of “gag on the web.”

COMPETENT JURISDICTION FOR THE WEB – The norm that recognizes as a competent responsible jurisdiction for web publications, that of the plaintiff, is also worrying: this rule creates a punitive disparity with regards to paper and over the air publications, and as such it can be fatal to the budgets of small news outlets.

RIGHT TO BE FORGOTTEN – Another worrying introduction is that relating to the recognition of the so-called right to be forgotten that appears to be inadequately regulated and risks triggering long and expensive litigations. This is the text of the rule under Article 3:

“Without compromising the right to obtain a correction or to update the information contained in an article deemed harmful of one’s rights, the interested party may require the removal, from websites and search engines, of defamatory content or personal data treated in violation of the provisions of law. 2. The person concerned, in case of refusal or failure to cancel the data, in accordance with Article 14 of Legislative Decree 9 April 2003 n. 70, may request the court to order the removal, from websites and search engines, of images and data or inhibit their further distribution. 3. In case of death of the person concerned, the faculties and rights as referred to in paragraph 2, may be exercised by the heirs or the partner.”

OTHER LIMITS – On the text also weigh all the limitations that have already been highlighted, including the obligation to publish a rectification without comment that, among other things, has now been extended to online newspapers within a maximum period of two days.

COMMENTS – Among the first positive comments, that of the rapporteur Rosa Filippin and that of Senator Rosaria Capacchione, which declared the vote in favour by the Democratic Party saying that this is not the best possible reform, but it nonetheless allows “to hit the schemers, setting clear rules for everyone else”.

Vincenzo D’Anna, deputy vice-chairman of the GrandiAutonomie e Libertà party, declared a vote of abstention because “this measure, with sanctions so onerous, is an undue pressure on press freedom.”

Senator Giuseppe De Cristofaro announced the negative vote of the SinistaEcologia e Libertà party, stating: “This law presents punitive and intimidating aspects. It is certainly very positive to have deleted the sentence of imprisonment for journalists, but the fines are a weapon of blackmail perhaps even more frightening, especially for temporary and freelance journalists that are not bound to large publishing groups. Furthermore, the obligation to rectify without right of rebuttal for the journalist alleged of slander is senseless”.

ASP

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