From the Consulta Ball to the Chambers on the prison for the journalist who defames

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ROME – For prison to journalists exactly as for the Cappato case and the end of life. After four hours in the council chamber, La Consulta re-proposes the model she used two years ago to deal with the case of Dj Fabo’s suicide. “In respect of loyal institutional collaboration” with Parliament, the Constitutional Court gives politics a year to decide whether it is still possible to maintain rules – article 13 of the 1948 press law and article 595 of the penal code on defamation – which provide, respectively, the possibility of ending up in jail for six, or for three years, for writing a “defamatory” report to a person.

Appointment, therefore, to 22 June 2021, when the Court will verify whether Parliament has complied with its invitation. We know how the Cappato case ended, the chambers pondered the question of the end of life, and the Consulta, exactly at the end of the time allowed, decided on its own giving in fact the free living to help suicide. We will see, this time, if the two bills currently in the Senate Justice Committee – the bill of Primo di Nicola di M5S on reckless lawsuits; Giacomo Caliendo’s decree of Forza Italia on defamation – will achieve the goal of eliminating prison for journalists, as article 10 of the Strasbourg Human Rights Convention establishes and how the ECHR itself has reiterated in several decisions concerning the press Italian (see Sallusti and Belpietro cases).

But there is not only this in the press note of the Consulta which gives an account of the decision taken after the report of Judge Francesco Viganò on the two issues raised, respectively, by the courts of Bari and Salerno, which in both cases complained, in anticipation of the prison for journalists, the violation not only of the ECHR rules, but also of numerous articles of our Constitution, especially on the 21st which guarantees the press from pressure and censorship.

According to the Consulta the questions posed – and which yesterday saw present at the public hearing, even if not admitted to the discussion as friends curiae, the leaders of the Order of journalists and the National Federation of the press – require “a complex balancing operation between the freedom of manifestation of thought and the protection of the reputation of the person, both rights of central importance in the constitutional order “. According to the Court, it deals with “a reformulation of this balance, which is now urgent in the light of the indications of the jurisprudence of the European Court of Human Rights, which is primarily up to the legislator”. Opposite the thesis of the State Attorney who instead defended the current rules in that, by canceling a strong penalty for defamation, it would end up creating a difference in treatment with defamation “not” in the press. And that would mean giving enormous power, as well as a sort of “weapon” in the hands of journalists.

Instead, it was born from the objective observation that in Parliament there are already two bills in the advanced discussion phase, the “decision” not to “decide” on the merits, but to allow the Chambers and politics well 12 months to get out of the ford of a defamation law that – it must be remembered – has gone through the various legislatures since 2013. It is no coincidence that, once again, the draft laws of Di Nicola and Caliendo have been presented for some time. On 20 September 2018 that of Caliendo, on 2 October of the same year that of Di Nicola. The two years are about to end and the two texts are still there, in the Senate, at the first parliamentary scrutiny. An agreement was reached on the text of Di Nicola who, on the reckless complaints, reads as follows: “In cases of defamation committed with the medium of the press, online newspapers or radio and television, which shows the bad faith or gross negligence of who acts in the civil court for the compensation of the damage, the judge, with the sentence that rejects the application, condemns the plaintiff, also to the payment of a sum, determined in an equitable way, not less than a quarter of that object of the compensation claim “.

The minuscule bill of a single article – two years for an article … – after endless mediations “is ready to go to the courtroom, probably at the end of June”, as the Undersecretary of Justice Vittorio Ferraresi tells Repubblica. But it is on the text of Caliendo instead – which concerns the whole complex issue of defamation in the press, of the corrections also on the online sites, and the responsibility not only of the reporters but also of the directors – that the negotiation is still ongoing, although many amendments are ready.

On the other hand, for the Consulta, there was no other way to follow, because an autonomous decision, whether or not constitutionality of both article 13 of the press law, and article 595 of the criminal code on defamation, would have sounded like a real slap in the Parliament. Certainly not in the line of the “institutional collaboration”, which has taken the place of the old “warning to the Chambers”, even less stringent than the 12 months, already inaugurated by the former president Giorgio Lattanzi, and now continued with the current president Marta Cartabia.

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