The new Government starts its tenure at a time when the protection of the right to freedom of expression and information and media freedom is under threat more than ever. We urge the new Government to prioritise the protection of journalists and undertake comprehensive legislative reforms to create an enabling environment for free expression in the country.
Partners of the MFRR have been monitoring the state of protection of freedom of expression and information and media freedom in Italy for several years . Earlier this year, in April 2022, MFRR undertook a fact-finding mission to Italy to assess the state of legislation on freedom of expression.
Based on this monitoring and further research, ARTICLE 19 Europe and MFRR members believe that the following reforms are urgently required to bring domestic legislation into full compliance with international freedom of expression standards.
Italy must strengthen the protection of journalists:
Over the last several years, our organisations have repeatedly raised concerns over the growing number of attacks and intimidation of journalists in Italy. The concerns over the safety of journalists have also been shared by the Coordination Centre on Acts of Intimidation against Journalists (the Centre), a public body that conducts monitoring, analysis, and prevention work to improve journalists’ safety and functions as a protection mechanism. The Centre has recorded a rising number of cases of attacks against journalists in the first half of 2022 compared to the same period in 2021. These range from physical aggression and verbal threats to threatening letters or online harassment, as well as remaining threats against investigative journalists from organised crime in Italy.
As the results of the MFRR fact-finding mission to Italy show, a number of measures must be adopted to improve the physical safety of journalists. Apart from the complex measures that the Government must undertake to ensure holistic protection of the journalists facing threats, the state mechanism of protection should be improved. The Centre should also improve the way of collecting and processing information about threats and attacks, and its political independence from the Ministry of Interior should be guaranteed.
Italy must fully decriminalise defamation, undertake comprehensive reform of civil defamation law and adopt comprehensive protection against SLAPPs:
At present, defamation is a crime under the Italian Penal Code and ‘defamation through the press’ is an aggravated offence (Article 596 of the Penal Code), in violation of international freedom of expression standards.
ARTICLE 19 Europe has long argued that criminal defamation is an unjustifiable restriction on freedom of expression. In Italy, these arguments have been supported by the rulings of the European Court of Human Rights, and the Italian Constitutional Court has found that the penalty of imprisonment is not a proportionate interference with freedom of expression. The Constitutional Court has also urged the Parliament to reform defamation legislation to ensure an adequate balance between ‘freedom of expressing one’s own thought and (the) protection of individual reputation’.
Strategic litigation against public participation (so-called SLAPPs) is a form of legal harassment against critical voices, pursued by powerful individuals and organisations who seek to avoid public scrutiny. Typically, the intention by the claimant is not necessarily to reach the court stage, where the facts of the lawsuit would be decided, but rather to draw out the legal proceedings in order to delay publication and/or exhaust the financial, as well as other resources (time, energy and psychological), of the defendant.
In Italy, SLAPPs are often enabled by problematic defamation law. In particular, in civil defamation cases, a court can order the vexatious plaintiff to pay costs plus additional damages suffered as a result of the litigation but it requires a very high threshold for proof. Additionally, the length of time of the judicial process, together with the large sums of potential damages hanging over a media outlet or an individual journalist’s head, remains a serious threat to media freedom, leading to self-censorship. In many cases, even relatively small awards can become insurmountable obstacles, especially for freelance journalists and small media outlets.
As our research shows, Italian law and judicial practice on the protection of reputation provide some safeguards against violations of freedom of expression in cases brought against the media. Unfortunately, those do not offer enough deterrence to SLAPPs claimants and do not discourage SLAPP lawsuits such as early dismissals or procedural expediency would.
The right of journalists to have their sources protected is an essential element of freedom of expression, as the media routinely depend on contacts for the supply of information on issues of public interest.
The Italian Penal Code recognises the right of ‘professional’ journalists to have their sources protected in criminal trials, while it gives the judge the authority to order the journalist to give testimony and to reveal their sources when it is absolutely necessary during criminal investigations by excluding protection to all other journalists that are not registered as professionals in the Media Registry.
However, there is a serious gap between the legislation and the practice, which needs to be addressed. The protection of sources is often bypassed by Italian authorities. Instead of directly requesting journalists to identify their sources based on court orders, the authorities employ various measures in the context of criminal investigation proceedings, including secret surveillance and searches of homes and offices.
While the wiretapping of journalists is explicitly prohibited in the Criminal Procedure Code, during criminal investigations, some prosecutors have ordered to wiretap journalists to look for information from their activities and sources to ascertain facts and look for proof of criminal liability. At a later stage in the proceedings, when court documents become available to the parties and the public, only then have journalists found out they had been wiretapped for months by the police and court files mentioned their sources. This is a serious violation of the protection of journalistic sources and has a chilling effect on freedom of expression.
Italy must improve the implementation of access to information law and the protection of whistleblowers:
The right of access to information held by public bodies was introduced in Italy with the Freedom of Information Act (FOIA) in 2016. The National Anti-Corruption Authority (ANAC) has been tasked with an oversight role in the implementation, which includes issuing guidelines containing indications for the purpose of defining the exclusions and limitations to civic access. ANAC has initiated some efforts to strengthen the implementation of the law, particularly at the local level, and to create the National Platform for Transparency in the Public Administration.
Despite these positive developments the implementation of the law is reportedly slow and public officials lack knowledge of legal requirements stipulated by the law, such as the timeframes for responses to requests or the right to review and appeal. Overall, there is a poor culture of openness and transparency from public authorities in Italy. At the same time, although ANAC is an autonomous and independent body, it is questionable whether an anti-corruption agency should be in charge of enforcing the FOIA law, instead of a dedicated body, typically an information commissioner or a national human rights institution. Additionally, Italy still has not ratified the Tromsø Convention – the Council of Europe Convention on Access to Official Documents.
Italy’s legislative framework on the protection of whistleblowers both in the public and private sector remains limited. In the private sector, it is based on voluntary compliance programmes by organisations having more than 50 employees. In practice, the ANAC does not have the mandate to receive whistleblowing disclosures from private sector employees or to issue sanctions.
Italy must create a national human rights institution:
Italy does not have any national human rights institution (NHRI): an independent body, with a broad constitutional or legal mandate to protect and promote human rights at the national level. Several legislative initiatives have been undertaken but have been unsuccessful due to the lack of support in the Parliament.
The UN Human Rights Committee in its Concluding Observations and the Human Rights Council in the Universal Period Review (UPR) cycles have repeatedly called on Italian authorities to fulfil their international obligations to set up an NHRI. The creation of such an institution would strengthen the promotion and protection of human rights in Italy and its expertise, as well as its independence, could make it the body to incorporate the Coordination Centre for the monitoring of attacks against journalists. It could also function as an oversight body of the FOIA, like in many jurisdictions around the world.
We call on the new Italian Government to urgently undertake the reforms outlined above. Crucially, the Government must ensure that the process of legislative and other reforms is undertaken in full consultation with the media, civil society and other stakeholders. This process must be genuinely participatory for all interested stakeholders and groups in society, and transparent so that there is a real sense of ownership in the final reform.