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Right to criticize. The Echr way ahead of National Courts

Two innovative judgments from the Court of Strasbourg allow take steps forward for the right to criticize. The reputation of a politician gives way to freedom of expression

The last few months have not passed in vain for the European Court of Human Rights. Two important ECHR judgments have, in fact, marked a deep divide with respect to the law of individual Member States, especially the Italian, with regard to journalistic right to criticize.

More and more often the Italian courts apply the innovative principles that come from Europe and increasingly Europe moves forward the balancing line between the right to inform and the right to protect the reputation of persons. It is a very delicate balance, intended by its nature to be affected by cultural, political and economic changes which in turn characterize the internal affairs of Member States. In this regard it should be given the utmost respect to the jurisprudence of the ECHR, which, despite the legal and cultural diversity of the States, never gives in to fragmentation, but moves across Europe towards greater uniformity inspired by a greater recognition of the right to criticize.

Two judgments delivered recently, which have aroused a great interest, have been a clear example.

The first, published on May 31, 2016 (Nadtoka against Russia), determined that politicians have the duty to raise, unlike ordinary citizens, the tolerance threshold with respect to criticisms and insults directed against them. For this reason they cannot claim damages for particularly harsh invectives: indeed for the defamation claim towards a politician, “something more” is needed than the mere unethical conduct against an ordinary person.

To benefit from this tolerance on the part of politicians, according to the judgment, would only be journalists and not others, because they carry the right / duty to inform. Basically, in the case of libel, the margins of the right of criticism increased if the offense is aimed at a politician.

The ruling also allows the journalist to exercise a degree of exaggeration and provocation, because the choice of style is an integral part of the right of freedom of expression. And this especially when at the heart of the piece there are politicians, required to greater tolerance of criticism, because they voluntarily choose to descend into the public arena by undergoing a collective control.

The principle is completely innovative also in the Italian case law landscape, where the public man is normally treated by the judiciary not only in the same way as the ordinary citizen, but paradoxically with more respect.

The second judgment of the ECHR – published on 5 July 2016 n. 1799/07 – established a substantially complementary principle with respect to the judgment of 31 May 2016, legitimizing sarcasm, irony and irreverence in newspaper articles that relate to public men almost withouth bounds. And even where individual expressions such as “stupid” and “slow to understand” are in themselves offensive, because journalists are entitled to use stylistic techniques, on matters of public interest, even with excessive sarcasm and irony.

The hope is that these judgments penetrate deeply into the culture of the judiciary that is yet to decide on libel cases. But the real cultural revolution would occur if the same principles were absorbed not only by the judiciary, but by all those who hold public office. Which, in the light of those two judgments, they should now be encouraged to not bring actions against articles that, while overdoing the sarcasm or criticism, have properly exercised their right to inform.

Lawyer Andrea Di Pietro, coordinator of the Legal One-Stop-Shop of Ossigeno

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