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31.05.2016

Italy: New bill proposes heavy jail sentence for defamation

by Alberto Spampinato, Director of Ossigeno per l'Informazione, Italy
For four years, the Italian Parliament promised to abolish prison sentences for defamation offences – but it did not so. Since 2012, the Chamber of Deputies and the Senate have been playing ping pong with a bill that aims to keep this promise. But neither side has approved it yet and there was no progress made for more than a year. Instead, during the coming days, the Senate is expected to consent to a bill to increase the maximum penalty for defamation from six to nine years in prison - supporting the exact opposite of what the parliament has pledged to do.

Meanwhile, Italy is not very reluctant to impose prison sentences on journalists: in the last five years, at least 18 custodial sentences for a total of thirty years' imprisonment have been declared. Defamation cases continue to be used in uncontested ways as improper weapons to intimidate journalists.

The Parliamentary inconsistency is shocking. Firstly, the draft bill that proposes the abolition of the prison sentence for defamation was already voted and approved – by the Senate and the House of Representatives – and now awaits only the final vote by the very Senate that instead prepares to pass a bill which demands the opposite. Secondly, the inconsistency is absolute because at the same moment both the House and the Senate have unanimously decided otherwise. They propose to delete the very norm on which the new bill is now based.

The “caste privilege”

The additional three years of prison would be applied to those found guilty of defamation with the intention of threat or retaliation against mayors, local officials, magistrates and other representatives of the political, administrative or judicial body. The sentence would be applied as an aggravating circumstance to what is already provided by the fourth paragraph of Article 595 of the Criminal Code, a paragraph that both houses have decided to lift with the bill that awaits final approval.

Some experts say, reassuringly, that this existing paragraph allows courts to raise jail sentences to that higher level and that the Senate only wants to extend the application to other subjects. However, they did not mention that this aggravating circumstance is largely unenforced because, for some time, the legal culture did not accept special prerogatives granted to political and administrative bodies as such privileges were considered to be left over from the old regimes that protected those in power.

The new bill is therefore significantly nicknamed a "caste privilege" as it exalts public officials. It contradicts all commitments solemnly undertaken by the parliament and the government to comply with the repeated and insistent calls by international institutions to decriminalise defamation and judge future cases according to civil law. The Italian Parliament just recently managed to change the law on insults and abandoned prison sentences for such offences.

Conflict with European legal standards

It should also be noted that these standards are censored by the European Court of Human Rights and that consequently the bill presented in 2012 to abolish the prison sentence provides for the abolition of that specific rule, that this abolition has already been voted on and approved in the first reading, both by the Chamber of Deputies and the Senate of the Republic and therefore, according to parliamentary rules, it can no longer be edited or changed.

Also on 9 December 2013, the Venice Commission of the Council of Europe applauded the abolition as welcome move as "the political discussion, as well as fair and responsible criticism directed at public figures, as part of debate of public interest, should enjoy maximum protection " (ebook).

The fact that the new legislation even wants to extend the privilege to the individual members of these political and administrative bodies multiplies its scope and the chilling effect.

International community aware of the threat

The situation is chaotic and there is no end in sight to the dilemma. There were no reports of any repentance, even now when major Italian journalists’ organisations raised the alarm. Dunja Mijatović, OSCE Representative on Freedom of the Media, shares the concern and emphasises the disastrous consequences it would have on freedom of expression: “This initiative is detrimental because jail terms are a disproportionate punishment for defamation,” Mijatović said. “To increase the penalty creates a chilling effect that is harmful to investigative journalism.” She also stresses that defamation laws should not be used by authorities to silence critical voices.

The call has also by recognised by the Platform to promote the protection of journalism and safety of journalists hosted by the Council of Europe.  It was submitted as Level 2 alert (the highest level alarm is Level 1) by several journalists organisations: EFJ (European Federation of Journalists), AEJ (Association of European Journalists), IPI (International Press Institute) and Index on Censorship.  

Public awareness needed

It is hard to make any predictions for the future. Probably the vote will be postponed and the parliament might waive the increase in the length of the prison term for defamation offences. The issue is discussed without public involvement and without the due attention of the media. It is worrying that the public was not informed that the Senate was working for one year on this draft bill and even more worrying that the lack of reporting minimises the impact of the proposed new law.

The whole development is shocking and confirms that in Italy the consideration of the political sphere for violations of freedom of expression and the media freedom is very low. Also it shows that the political class and the members of parliament do not hesitate to reduce this freedom to solve their problems. It is likely that they will continue to act in this way without losing support as long as the citizens, and journalists themselves, have so little awareness of these rights and their influence on public life.



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