Draft Bill to Tighten Criminal Penalties for Defamation

Update: 13 Sep 2016 Resolved
Year 27 May 2016 Country Italy Category Other acts having chilling effects on media freedom Source of threat State Partner EFJ/IFJ , AEJ , Index , IPI Alert level Level 2
27 May 2016 Italy Other acts having chilling effects on media freedom State EFJ/IFJ , AEJ , Index , IPI Level 2

A committee of the Italian Senate voted unanimously on 3 May 2016, a draft amendment to the Penal Code which will increase the criminal penalties for those accused of defamation against members of the political class, the judiciary or public administration. The draft law will soon be submitted to the Senate for adoption. Specifically, the text envisages raising the maximum sentence from 6 to 9 years in prison, if the defamation concerns a politician, a judge or a public servant. The bill was denounced by the Italian Order of Journalists, the Italian Federation of Journalists Organisations and the NGO Ossigeno per l'Informazione, which recall that another draft bill, introduced in 2012 proposed outright decriminalisation of defamation. In 2013, the OSCE Representative on Freedom of the Media, Dunja Mijatović, addressed a letter to the then Italian Foreign Minister Emma Bonino, to remind her of the case-law of the European Court of Human Rights, which considers that prison sentences for defamation are a disproportionate sanction and a threat to democracy. The organisations submitting this alert hold firmly to the principle, which has been established in rulings by the European Court of Human Rights, that those who hold high public office should not enjoy additional protections in law but instead should be prepared to accept a higher level of criticism than others.

Resolved On 8 June 2016, the plenary of the Senate has decided to remove from the Bill the provision which would have increased prison terms from six to nine years in case of defamation of elected officials and judges - given the risk of chilling effect on media freedom. On 13 September 2016, the partner organisations of the Platform declared this case to be "resolved”, concluding it was no longer an active threat to media freedom.

State replies

21 Jun 2016 : Reply from the Italian Ministry of Foreign Affairs

Follow-ups

27 May 2016 : Defamation penalty in Italy needs to be considered for its effect on free expression, OSCE media representative says

Relevant CoE instruments Disclaimer

27 May 2016 : Venice Commission Opinion on the Legislation on Defamation of Italy (December 2013)

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On 20 March 2018, the European Court of Human Rights issued its Grand chamber judgment on Mehmet Altan’s case. The Court found there had been a violation of Article 5 § 1 (right to liberty and security) and a violation of Article 10 (freedom of expression) of the European Convention for Human Rights. With regards to article 5 §1, according to the Court findings, “Mr Altan’s continued pre-trial detention, after the Constitutional Court’s clear and unambiguous judgment of 11 January 2018 (…), could not be regarded as ‘lawful’ ”. The Court held that “for another court to call into question the powers conferred on a constitutional court to give final and binding judgments on individual applications ran counter to the fundamental principles of the rule of law and legal certainty, which (…) were the cornerstones of the guarantees against arbitrariness”. Under Article 10, the Court held in particular that “there was no reason to reach a different conclusion from that of the Constitutional Court, which had found that Mr Altan’s initial and continued pre-trial detention, following his expression of his opinions, constituted a severe measure that could not be regarded as a necessary and proportionate interference in a democratic society”. The Court pointed out in particular that “criticism of governments and publication of information regarded by a country’s leaders as endangering national interests should not attract criminal charges for particularly serious offences such as belonging to or assisting a terrorist organisation, attempting to overthrow the government or the constitutional order or disseminating terrorist propaganda”.

20 March 2018

On 20 March 2018, the European Court of Human Rights issued its Grand chamber judgment on Şahin Alpay’s case. The Court found there had been a violation of Article 5 § 1 (right to liberty and security) and a violation of Article 10 (freedom of expression) of the European Convention for Human Rights. With regards to article 5 §1, according to the Court findings, “Mr Alpay’s continued pre-trial detention, after the Constitutional Court’s clear and unambiguous judgment of 11 January 2018 (…), could not be regarded as ‘lawful’ ”. The Court held that “for another court to call into question the powers conferred on a constitutional court to give final and binding judgments on individual applications ran counter to the fundamental principles of the rule of law and legal certainty, which (…) were the cornerstones of the guarantees against arbitrariness”. Under Article 46 (binding force and execution of judgments) of the Convention, the Court held that it was incumbent on the respondent State to ensure the termination of Mr Alpay’s pre-tria detention at the earliest possible date. Under Article 10, the Court held in particular that “there was no reason to reach a different conclusion from that of the Constitutional Court, which had found that Mr Alpay’s initial and continued pre-trial detention, following his expression of his opinions, constituted a severe measure that could not be regarded as a necessary and proportionate interference in a democratic society”. The Court pointed out in particular that “criticism of governments and publication of information regarded by a country’s leaders as endangering national interests should not attract criminal charges for particularly serious offences such as belonging to or assisting a terrorist organisation, attempting to overthrow the government or the constitutional order or disseminating terrorist propaganda”.
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