Guest article by Alberto Spampinato, President of Ossigeno per l’Informazione. MLDI has been working with Ossigeno per l’Informazione since 2015 to provide legal defence to journalists, bloggers and independent media in Italy.
In Italy defamation is still a crime that can be punished with significant sanctions. When committed via the media, criminal defamation can be punished with up to six years in prison. The only European country with a higher penalty is Slovakia. Meanwhile, a draft bill that intends to reform and hopefully decriminalise defamation, or at least abolish imprisonment, has been under discussion in the Parliament for twenty years.
Currently, every year in Italy thousands of unfounded defamation charges are made to intimidate journalists. The Italian Parliament has been working since 2001 to amend the problematic defamation law, which has been in force for 70 years itself.
For all the five years of the most recent parliamentary term (which ended in December 2017) the Costa Bill has remained in draft form. The bill intended to end the plague of unfounded defamation charges by addressing defamation law, and MPs seemed close to reaching the finishing line, but to no avail. In early 2017, Ossigeno predicted that the draft bill was heading towards a dead end and suggested ways to avoid this happening. However, eight months later, on 28 December 2017, the Italian parliament ended without having approved it.
The two branches of Italian Parliament, the House of Representatives and the Senate, have so far been unable to agree on or approve the same text of the draft bill. All bills must be approved by both Chambers to become law, and a pattern of each Chamber making small changes to the text every time created an impasse: with the text passing back and forth rather than becoming law. It was a five year tug of war: those in favour of reform wrestling with supporters of the status quo. Ultimately, in December 2017, the status quo won again.
So, once again, during its last mandate 2013-2018 (formally ended on December 28, 2017) the Italian Parliament failed to maintain its solemn commitment to abolish the law which allows prison sentences of up to six years for defamation.
The same disappointing result had occurred at the ends of the previous two parliamentary terms in 2006 and in 2013, and none of the 946 members of Parliament have proposed decriminalising defamation, despite international institutions urging for this change many times.
Without decisive action to change it, the Italian law will remain in force, continuing to have a chilling effect on journalism and freedom of information. Before the law is changed there will likely be, as there have been in recent years, hundreds more prison sentences for libel.
This can be demonstrated with some shocking statistics: in just the last five years – while the Parliament was trying to pass the Costa Bill to decriminalise libel – the Italian courts heard an average of 6,813 criminal defamation cases per year. Of these, an average of 475 were convicted annually. Of those convicted 155 were given prison sentences. It is clear from Ossigeno’s monitoring that many of the people accused are journalists, bloggers and other media workers.
The same statistics show that over the last five years that Parliament spent trying to decriminalise libel, the prison sentences issued for libel have totalled 515 years (an average of 103 years’ of sentences per year). In practice, the prison sentences are almost always suspended, or judges opt for alternative punishments such as house arrest or community service orders. However, on two occasions in recent years judges have sentenced journalists to serve time in prison following multiple suspended sentences, such as in the cases of journalists Francesco Gangemi and Antonio Cipriani.
Even when a prison sentence is suspended, however, it still constitutes a huge threat to a free press: jail time and other penalties for libel are suspended only on the condition that those convicted do not commit the offence again. Understandably, this creates a strong chilling effect on the work of journalists, and has a huge impact on their ability to collect and publish information in the public interest.
In other words, this constitutes intimidation which is compounded by the fact that journalists often face repeated defamation charges and claims, , in a widespread abuse of legal system.
Until 2016, there was no data measuring the huge extension of the phenomenon of vexatious libel actions in Italy. Eventually an official statistic was issued by the Italian Ministry of Justice, at the request of Ossigeno per l’Informazione, which was later disseminated in agreement with the Ministry. The data sparked the media landscape and changed the way the phenomenon was approached by all stakeholders. These statistics highlighted, in addition to the hundred years of prison sentences, that in the same five years (2013-2017) that the Parliament had been discussing the draft bill, Italian courts dealt with 29,520 penal charges for defamation. According to an estimation made by Ossigeno, the combined cost of the defendants’ legal expenses for these trials totalled 270 million Euros. Remarkably, 90% of these costs constitute a burden for journalists. Because most claimants do not reimburse legal expenses to the defendant after acquittal, even the cases which ultimately exonerate the journalists still create a heavy financial burden. The cost of defending these cases is sufficient threat to lead to self-censorship.
Currently, now that a new Parliamentary Assembly has started working again, it seems that there is a new chance that libel could be reformed. Ossigeno per l’Informazione is still working towards this goal. There is a new draft bill created by the new Assembly as part of a media package law reform. However, the real possibility relies only on the political will to move forward and make the final step – especially in the light of Ossigeno’s shocking data. In the meantime, by providing free legal aid to journalists in Italy, Ossigeno helps journalists under threat to defend themselves, without worrying about the financial cost, so that they can continue reporting in the public interest.
 Since the enactment of the Penal Code in 1930 and the press law in 1948.
 Most recently the commitment to abolish the law was advocated by Giorgio Napolitano the President of the Republic, along with all political parties, in 2012, following the sentencing of Alessandro Sallusti, a journalist and editor of the daily newspaper “Il Giornale”. His prison sentence was commuted to a 14-month house arrest, but the President intervened and pardoned him, reducing the penalty to a fine. Napolitano used the opportunity to recommend that Parliament alter the law which has such a chilling effect on press freedom.