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Defamation. Ossigeno’s legal desk: european rules to be applied

As the jurisprudence of the ECHR, which recognizes the right of criticism along with the right to report, and which has seen a blogger acquitted

On February 20th, the blogger Daniele Brunetti, assisted by the Legal Office of Ossigeno per l’Informazione and with the support of Media Legal Defence Initiative (MLDI), was acquitted of libel, following a trial, “because the fact does not consist of an offense”. The ruling was issued by the single judge of the Criminal Court of La Spezia, in the person of the Judge Dr. Stefania Letizia.

The trial itseld had quite a few very interesting legal issues. The question most nullifying being the tenuous differences between freedom of the press and right to criticize.

The blogger, in fact, had reported a news ‘coming’ from the then former commander of the City Police, asking ‘to ask for an account’, to the Mayor of Portovenere, for the truth of the facts precisely as narrated by the former commander.

First question: can there coexist within the same article or post, the freedom of the press and the right to criticize? The answer is undoubtedly positive, and on the issue, even the rulings of the Supreme Court are now in one direction.

Second question: can the right to criticize ‘overshadow’ (although in this case the term used by the blogger, ‘suspend a practice’, is perfectly legitimate) also the existence of not an exactly linear conduct on the part of a public administrator? The answer is yes, and on this crucial point it was the role of the Strasbourg Court, which with its judgments has ‘revolutionized’ national jurisprudence, which on the matter is still far too timid.

The greatest difficulty was to propose in front of the Court the question of the immediate applicability of the rulings of the ECHR in the national case-law, unhinging the judgments of national courts from the ‘old’ judgment Decalogue of 1984 and supporting the introduction, in the jungles of national case-law, courageous pronunciations totally ‘devoted’ to the protection of investigative journalism and freedom of expression.

In particular, thanks to the valuable contribution made by the MLDI consultants, who have worked with us, it was possible to bring to the attention of the national court a specific ECHR jurisprudence, of which we highlight the pronunciations “Reichman v. France” and “Renaud v. France”: where the former states that a journalist can, even in the context of a report, and even in a story whose outlines are not fully explained below, ask a prominent figure to be held accountable; the latter sets the journalist’s right to use a language that may even be provocative and openly ‘challenging’.

It can be concluded, that the support and the importance of using the judgments of the EU courts even in the Italian Courts is imperative: this is because the Court in Strasbourg, in operating the balancing of conflicting interests, has always been consistent in favouring the right of freedom of expression of thought also with respect to the right of reputation.

In addition, in two recent pronunciations, taken on the same date (sent. 24 October 2007, n. 348 and sent. 24 October 2007, n. 349, the Constitutional Court addressed the issue of the bond placed by Article 117, paragraph 1 of the Constitution in relation to obligations under the European Convention for the protection of human rights. From the pronunciations of the Council come, beyond the general guidelines regarding the interpretation of Article 117, that is, the constraint placed on the domestic laws in relation to international obligations, the more specific requirements in relation to the European Convention regime and the consequences that follow from its internal application, that is, among others, the prevalence of the ECHR jurisprudence over the national one.

Avv. Valerio Vartolo

Avv. Andrea Di Pietro

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