Originally published by Columbia Global Freedom of Expression , written by Sofia Verza
Amalia De Simone is an Italian investigative journalist. In 2016, she was honoured with the title of Cavaliere della Repubblica Italiana (“Knight of the Italian Republic”) because of her reporting. In recent years, she has been battling on the front-line against the practice of bringing unfounded cases against journalists in Italy. This mirrors a wider campaign in Europe against frivolous or vexatious charges that are brought against journalists with the purpose of impairing their ability to carry out their journalistic work.
In Italy, defamation charges have been very commonly used against critical reporters, especially when they have been covering stories about public figures or famous entrepreneurs. If a journalist is unable to mount a defence against such cases, they can result in penal sanctions or orders to compensate those allegedly harmed by the impugned statements.
All the cases that have been brought against Amalia De Simone over the last few years (mainly criminal defamation cases) have been dismissed by the Public Prosecutor’s Office before they have reached the first instance court. Nonetheless, the plaintiffs would regularly appeal these dismissals and bring their cases before the Judge for Preliminary Investigations. This has meant that, although the Public Prosecutor has been unwilling to pursue the cases, Amalia De Simone has still faced very long inquiries and has been subject to continuous legal proceedings that are both expensive and time consuming.
In this article, I will analyse three relevant episodes of vexatious cases that have been brought against Amalia De Simone, starting with the most recent. All these cases were dismissed by the Public Prosecutor but were later pursued before the courts by individuals alleging that they had been defamed nonetheless.
Sunbathing at Poggioreale prison
On May 13, 2015, Amalia De Simone published a video report on the website of the newspaper Il Corriere del Mezzogiorno entitled “Poggioreale, il tetto del carcere usato come solarium ” (“Poggioreale, the prison’s roof used as a solarium”). This article followed some allegations made by the neighbours of Poggioreale prison about the fact that some people were seen sunbathing on the roof of the prison, which is situated in the centre of Naples. It was noted that the timing of these incidents corresponded with the prisoners’ yard time. In her video report, Amalia De Simone depicted these daily incidents and interviewed some of the prison’s neighbours. These neighbours indicated that they feared about the apparent lack of security measures and were concerned that the sunbathing made a mockery of the prison. In the text accompanying the video, Amalia De Simone clarified that “it was not clear who these mermaids are: prisoners, employees of the prison, workmen or guards”.
The following day the director of the prison, Fullone Antonio, and the head of the prison guards, Diglio Gaetano, claimed that Ms. De Simone was guilty under Article 595 of the Italian Criminal Code (criminal defamation). They alleged that Ms. De Simone’s video report “defamed and denigrated the image of the Prison Guards’ Corp as well as that of the whole Prison Administration, inducing distorted considerations in the public opinion.” According to the claimants, the roof where the reported sunbathing took place belonged to a pavilion under reconstruction and the individuals sunbathing were workmen. Furthermore, the company responsible for renovating the pavilion confirmed the claimants’ version of events.
As the journalist’s attorneys (Amedeo Di Pietro and Giovanni Di Cagno) underlined, reporting on this abnormal situation was in the public interest. This was particularly true after the recent scandal regarding the so-called “Zero Cell ” in Poggioreale prison. This was an empty room in which prisoners suffered regular abuses, as was highlighted by a report of the European Parliament. Ms. De Simone’s lawyers also highlighted that all of the interviews merely repeated the interviewee’s own words, and they contained no specific offense or allegations of responsibility against the claimants themselves. Instead, the journalist correctly verified the information, evaluated its public interest relevance, and remained within the boundaries of objective reporting. This case is still pending.
Earlier, in 2012, Ms. De Simone was prosecuted for criminal defamation (Article 595 of the Italian Criminal Code) at the instigation of Luigi, Salvatore, Giorgio and Palma Di Francia, who were associates of the Cos. Mer. S.p.a. company. The case arose from one of Ms. De Simone’s articles that featured on the online version of the Italian national newspaper Il Corriere della Sera. The article was entitled “Lo scandalo della discarica di Pianura ” (“The Pianura’s dump scandal”). This article explored allegations of deplorable waste management in the Campania region. In particular, the article observed that the dump in Pianura (a suburban area of Naples) had been managed by the same business groups since the 1980’s. Among other things, the article noted that the associates of these business groups mainly belonged to the Di Francia family, and that these groups had been repeatedly appointed to their positions by the local administrative institutions of Naples.
Following the article in question, the four associates complained that the article had linked them to “the same Di Francia managing the dump of Pianura for 20 years through the Di.Fra.Bi. and Elektrica S.p.a. companies.” However, as Ms. De Simone’s attorney Caterina Malavenda noted, this statement only referred to their belonging to the same family as the associates running those companies that were responsible for managing the Pianura dump for the past 20 years.
Moreover, the Italian Parliamentary Commission on waste and connected illicit activities wrote a report in 2000 addressing the companies in question, declaring that the disposal of waste in Pianura was illicit. Subsequently, the companies were banned from continuing their activities under anti-mafia legislation. A consulting member of the Public Prosecutor’s office in Naples stated that “the waste management has been conferred to different companies that changed their business name […] even though they can be traced back to the same business groups since the 1980’s.” A report from the Anti-Mafia Investigative Group in January 27, 2009 reached similar conclusions. The existence of family ties between some of the associates of these companies was also confirmed by Judgment No. 8332/2009 of the Campania Regional Administrative Tribunal (TAR).
As Ms. De Simone’s attorney Caterina Malavenda sustained, the critical opinions expressed in the article against these companies were based on the above-mentioned sources. Therefore, in line with the jurisprudence of the European Court of Human Rights (ECtHR), Ms. De Simone’s statements were not only value judgments, but were also based on true and factual information. Consequently, it was argued, there was a sufficient factual basis to the statements made in Ms. De Simone’s article (Feldek v. Slovakia ).
The case against Ms. De Simone also concerned an interview featured in the article with a local activist and lawyer who expressed critical opinions on the companies managing the Pianura dump. In this regard, it is worth highlighting that the Italian Supreme Court (judgment No. 37140 of 2001) stated that, even if a journalist reports offensive statements made by his or her interviewee, the right to report issues of public interest have to be taken into account. Similarly, the ECtHR has stated that “[t]he punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so” (Jersild v. Denmark ).
For these reasons, Ms. De Simone’s attorney asked for the charges to be dismissed under Article 51 of the Italian Criminal Code, which provides a defence where an action is committed in exercise of one’s own right. In this case, the journalist had been exercising her right to criticize and express opinions on issues of public interest without aiming at offending any individual person, and through a balanced and accurate article (otherwise referred to as “continence”). These last two elements, in particular, characterized the right to criticize without unjustified restriction. Moreover, according to the Italian Civil Supreme Court, criticism can be strong and biting, as well as partially non-objective, since it is ideologically oriented by its very nature.
These proceedings were permanently dismissed on April 20, 2017. The Judge for the Preliminary Investigations of the Tribunal of Naples agreed with the Public Prosecutor in believing that the article under charge was an expression of a subjective interpretation of the facts. Moreover, it discussed a matter of public interest and the narration fell within the limits of the right to report.
International drug trade
On June 18, 2014, Ms. De Simone published a video report entitled “Cocaina tra le pinne dei pesci: l’intreccio Lavitola, affaristi e ‘ndrangheta ” (“Cocaine in the fishes’ fins: the plot between Lavitola, businessmen and ‘ndrangheta”). The video was published on the website of Il Corriere della Sera, and traced an international trade of cocaine from South America to the Italian port of Gioia Tauro. It featured some photos of fish that had been found to contain cocaine, as well as emails exchanged between some important politicians, businessmen and members of criminal organizations.
On July 12, 2014, a businessman in Panama who worked in the fishing sector (Valerio De Sanctis) brought a case against the journalist under Article 595 of the Italian Criminal Code for defaming his personal dignity, as well as damaging the image of his company (Panalang), through the above-mentioned video report. He maintained that the accusations made in the video were false, and that the entire report was based solely on the allegations of an unknown source. Moreover, Mr. De Sanctis underlined that, even if the journalist never mentioned him/his company and redacted their names from the emails featured in the video, identifying them was very easy. For instance, Ms. De Simone allegedly published the company’s tax ID number, and he and his company were later named in the Panamanian press. This argument was contested by Ms. De Simone’s attorney.
Regarding the anonymous source, the journalist specified her source feared for his life when reporting on such information. Therefore, maintaining his anonymity was crucial. Not to mention the crucial importance of guaranteeing the journalist the secrecy of her source . Moreover, the video report was accompanied by a disclaimer in which the journalist specified that “we are not sure this [what was found inside the fish] is cocaine: our sources say so.”
As to the allegation that it was possible to identify Mr. De Sanctis and his company, Ms. De Simone stated in the report that she decided to hide their identities, leaving it to the courts to eventually investigate their identity. This editorial choice was aimed at balancing the interest in disseminating information of public interest with the interest in safeguarding the claimant’s privacy. As Ms. De Simone’s attorney specified, the impossibility of identifying an individual excludes the potential for a journalist to be found guilty of having defamed that individual. Nevertheless, even if the safeguards taken by the journalist against potential identification were weak, it would only be relevant to whether the journalist acted negligently rather than fraudulently. The lawyer also underlined the veracity of the information disseminated by the journalist, since the Public Prosecutor of Naples started investigations into a potential drug trade on the basis of Ms. De Simone’s allegations. “It is funny,” Ms. De Simone said when interviewed by Columbia Global Freedom of Expression, “Mr. De Sanctis basically implicated himself by suing me: I never mentioned his name in my report.”
On previous occasions, the Italian Civil Supreme Court has declared that investigative journalism is the highest form of reporting, and was guaranteed by the right to information (judgment No. 16236/2010). For this reason, investigative journalism on matters of public interest must enjoy milder application of the rules on the ethics of journalism. Furthermore, Article 6 of the Deontological Code of Journalists itself provides that “the dissemination of public interest news does not clash with the respect for private life when the information is necessary because of the first-hand and newsworthy nature of the fact narrated” (again, Supreme Court 16236/2010).
These proceedings were permanently dismissed on December 30, 2016. The Judge for the Preliminary Investigations of the Tribunal of Naples agreed with the Public Prosecutor that there was no constitutive element of the crime of defamation committed, since the journalist was cautious in balancing the importance of disseminating news of public interest with the interest in respecting the claimant’s dignity and honour.
Vexatious cases against journalists aimed at silencing them and to cause a “chilling-effect” on their work are still a common practice in Italy. The impact of such cases is often underestimated by institutions and public opinion. Tags:
Defamation and Libel