On the 8th of May 2023, Amnesty International Italia, Articolo 21, Environmental Paper Network, Osservatorio Balcani e Caucaso Transeuropa, The Good Lobby, Transparency International, as part of the Italian anti-SLAPP working group, submitted their analysis of the proposed amendments to the defamation legislation, taking part in the consultations disposed by the Italian Senate Justice Commission.
On the basis of their experience in the protection of the right of expression and in the fight against SLAPPs (Strategic Lawsuits Against Public Participation), the above-mentioned organisations which are part of the Italian Anti-SLAPP Working Group aimed at providing their own contribution to the draft laws currently under discussion.
The decision of the Italian Parliament to initiate a debate on defamation aimed at reforming the current legislation of both civil and criminal codes, responds to the call of the Constitutional Court (ruling no. 132/2020 and ruling no. 150/2021). Similarly, such decision is in line with the debate at European level as articulated in the 2020 European Democracy Action Plan. In particular with the issuing of EU measures aimed at countering abusive and exaggerated lawsuits (2022/177 and 2022/758).
The working group welcomed the objective of the proposed amendments spelled out by bills no. 81, no. 466, and no. 573 – namely, promoting a reform directed at striking a balance between freedom of expression and the protection of reputation. The working group also welcomed references to Article 11 of the Charter of Fundamental Rights of the European Union (bill no. 81) and Article 10 of the European Convention on Human Rights (bill no. 573), which are in line with the invitation of the Italian Constitutional Court to employ the jurisprudence of the European Court of Human Rights as an 'instrument of expansion and adaptation of domestic law'.
Specifically, the working group welcomed the provisions introduced by bill no. 573 and no. 466, both codifying the abolition of prison sentences, in line with the rulings of the Strasbourg Court, a practice already consolidated in Italian jurisprudence, and prescribed by the Constitutional Court (No. 150 of 2021).
With regard to the amendment of Article 96 of the Code of Civil Procedure, the best provision seems to be the one contained in Article 1 of bill no. 616, which provides for the certainty of the imposition of compensation and a sanction against the plaintiff who is found to have abused the civil proceedings for defamation.
However, the working group’s analysis highlighted a number of pejorative aspects which should also be noted. In particular, provisions directed at increasing fines for criminal defamation are a source for concern. Provisions mentioned in bill no. 466 would significantly raise the minimum fine, setting two brackets: penalties from 5,000 to 10. 000 and from 10,000 to 50,000 euros. Provisions mentioned in bill no. 573 - while lowering the penalty of the maximum fine - would increase the amount of the minimum penalty, also setting two brackets, with fines from 2,000 to 5,000 euros and from 7,000 to 15,000 euros. An increase in fines of any amount goes against the interpretation of Article 10 ECHR provided by the jurisprudence of the European Court of Human Rights, which has repeatedly stressed that penalties for defamation must take into account the impact they will have on the economic situation of the defendant, in order to prevent the imposition of a disproportionate fine which would trigger a chilling effect on freedom of the press and expression. Moreover, monetary penalties emerge as particularly damaging for those with limited means, while they prove ineffective for those with generous financial resources, a dynamic that encourages the use of lawsuits for the mere purpose of intimidation. Lawmakers are invited to reflect on the potential censoring effect that increased penalties for defamation offences could have on small publishers and freelance journalists.
Similarly, the provisions of Article 1(e) contained in bill no. 466, and Article 13 of bill no. 573, concerning the imposition of ancillary penalties of disqualification from practising the profession for a period of one to six months, are of serious concern, due to the potential deterrent effect of criticism, a direction opposed to the practice of the Strasbourg Court.
The contribution of the bills under discussion emerges as marginal compared to the task assigned by the Constitutional Court, which had called on the Italian Parliament to initiate a 'comprehensive' reform of defamation provisions. In fact, contrary to what is mentioned in the preamble of the bills under consideration, some of the analysed amendments shift their focus from the need to formulate provisions aimed at protecting journalists from abuses of the law and vexatious lawsuits, to the need to safeguard plaintiffs. A formulation which ends up promoting a rhetoric that seems to perceive most of the journalistic community as professionals acting in bad faith and emerges as prioritising the right to reputation over freedom of expression in an unbalanced manner.
In conclusion, the working group finds any reform of the legislative framework of defamation that does not consider the current debate in the European Parliament and the Council of the European Union on the proposal for a directive on SLAPPs (2022/0117), and, in particular, the two concepts of public participation interest and public interest issues, as defined by Article 3 of the directive proposal, to be incomplete and unable to address the challenges that vexatious lawsuits pose to journalists and activists.
Read the full contribution in Italian
Defamation and Libel
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