Press freedom in Italy: those in power are not to be criticised

The state of affairs is worrying because this trial represents a worsening drift. I have been defending Saviano for almost 15 years now, and over the years Saviano has faced numerous lawsuits. The only two criminal lawsuits which have not been dismissed during preliminary investigations, were those in which the plaintiffs were Giorgia Meloni and Matteo Salvini. If we want to consider free expression, even in relation to a sharp and strong criticism, as a sort test of the health of democracy, then indeed, this conviction is bad news. The way in which the entire process has been managed is bad news.

During the hearing last October, the prosecutor argued that calling a politician a bastard does not fall under the exercise of harsh political criticism, it rather constitutes an attack on the person. Why does the insult formulated by Saviano not represent an attack on reputation?

It is not an attack on reputation because when talking about defamation in connection to the right to criticize, it is important to assess the context of the criticism. The prosecutor’s conclusions would have made sense if, during an interview, Saviano had gratuitously and casually called Meloni a bastard. Moreover, those conclusions of the Prosecutor’s Office are based on falsification. Saviano never used the singular. Its plural, “bastards”, gave much more the sense of political criticism. However, the expression was tuned to the singular by both the private and the public prosecutors because there was a need to portray a political criticism— directed towards multiple subjects across the political spectrum who had expressed the same negative approach regarding NGOs’ sea rescues of migrants—as a personal attack, which was the only way to rule out any legitimacy to the criticism formulated by Saviano. Exonerating circumstances related to the right to criticize, moreover, were partly recognized in the verdict. In fact, while Saviano was convicted, the judge acknowledged a mitigating circumstance associated with the high moral and social value of his criticism. Nonetheless, in this trial, the prosecution was very worried about the plaintiff.

How do you explain the decision of the Roman court?

What struck me from the very beginning is that the day before, another verdict was issued in the appeal against Mimmo Lucano [former mayor of Riace, in Calabria, who had promoted a progressive model for the integration of migration in his town]. Another judicial case that has drawn a lot of attention. Mimmo Lucano, like Saviano, was identified as an extraordinary propaganda opportunity by the same politicians who chose Saviano as their ideal target. Because in defamation cases, alongside with defendants, their ideas are objects of the trial. If I were to give a legal explanation, I would imagine that in the best-case scenario, the court considered the ECtHR judgment analyzing the case of an Austrian politician who was called an idiot by a journalist criticizing him because this Austrian politician had said that even Nazi soldiers had contributed to building peace. The Court makes a very interesting reasoning by saying: this criticism is justified because the politician, while making that abhorrent statement, has in mind a propaganda purpose. In that ruling, the Court mentions the concept of consciously provoked outrage, which according to me is a very convincing definition of the concept of propaganda. What does this mean? The politician, to put it informally, makes a big statement because he knows that he will provoke outrage, for opposite reasons, both among his supporters and the other political party. When this happens, criticism, argues the ECtHR, can be proportionate. Hence, even very harsh criticism is allowed. The verdict convicting Saviano does not address this issue and also confuses some of the constituent elements of the crime of defamation. While reading it, I had the strong feeling that the judge herself was not convinced of the decision to convict, but I think external factors weighed in heavily.

What is the context in which the verdict was issued?

A few days before the verdict, Italian politics were dominated by the debate surrounding a Sicilian judge who had refused to apply the so-called Cutro decree [the governmental decree issued after a shipwreck off the beach of Cutro, in Calabria in which almost 100 people lost their lives]. According to the rule of law, judges are called to interpret the law in order to apply it. They are asked to take into account laws’ compatibility with the constitutional framework. Arguing, as Meloni did, that judges must apply the laws tout court and refrain from any interpretation is outrageous. The idea that a judge must apply a law always and in any case, even when the law is unconstitutional, goes against the principles considered essential by our fundamental Charter. It is an extremely dangerous idea that indicates an authoritarian and illiberal vision of democracy on the part of the Government.

What does it mean to have a high level public official suing you? 

In Saviano’s case, a head of government who acts as plaintiff in a trial poses enormous consequences for the separation of powers, affecting the independence of the judiciary. If I, as a judge, know that the lawyer I have in front of me will become a deputy minister of justice within a year, or I know that the lawyer I have in front of me will become a member of the Superior Council of the Judiciary within a year, and that therefore my career could pass through the desk of that lawyer, you understand well that independence is compromised. The situations described are not random examples: they concern respectively what happened in the trials brought against Saviano by Meloni and Salvini. Throughout the whole process, we experienced an anomaly, where the powerful individual seemed to be Saviano. And the person to be protected, Meloni, even when she became Prime Minister. This suggests that politicians believe they are entitled to a sort of retaliation against the journalistic community. Today we have reached the point where, and this is what the Meloni government has legitimized, lawsuits are filed no matter what. Or at least the threat of lawsuit, because between the threat of a lawsuit and the formalization of a lawsuit, there is the ocean in between. Threats of lawsuits are made public without any attempt by the plaintiffs to refute the criticism that was formulated against them. An investigation provides evidence of a certain situation involving a minister, a deputy minister, or a party member, and the response is: I will sue you. There is hardly any justification. Because what it is conveyed is that power is not to be criticized. And if it is criticized, you are criticizing it for an interest, so you must be punished.

Moving on to the activities of the Italian legislature, in 2020 and 2021, the Constitutional Court had invited Parliament to initiate a broad debate on the issue of defamation through the press, both in civil and criminal matters. During the past year, 5 different bills were presented. Last fall, only one was selected to be pursued in the parliamentary process, the Balboni bill.

I say this against my professional interest, but my idea is that defamation should be decriminalized: defamation should not be a crime. Provided that there is a legal framework in place for those who feel that have suffered damages to their reputation. They are entitled to take action in civil court and obtain damage compensations. A provision which should be balanced by the possibility of declaring the recklessness of the action. A possibility that already exists in our legal system in civil matters, but which should be implemented by establishing criteria of proportionality between the damage claimed by the plaintiff and the severity of the penalty in the event of proven recklessness in the dispute. If we truly want to implement and fully fulfil the spirit of Article 21 of the Italian Constitution, the idea that someone can be criminally prosecuted for expressing their ideas is, in my view, no longer acceptable. As long as defamation remains a crime, we risk interpretations that are each time different and linked to contingencies.