The paper focuses on the legitimacy under the Italian Constitution and ECHR of custodial sentences for the crime of defamation through the press under articles 595, par. 3, of the Italian Criminal Code and 13 Law 47/1948, taking into account the ECtHR (Cumpănă e Mazăre, Katrami, Belpietro, Ricci e Sallusti) and the Italian Constitutional Court (order no. 132/2020) case-law, as well as the tools available to judges in order to implement the principles embodied in the said judgments about the balancing between freedom of expression – at the same time individual right and fundamental value of a democratic society – and protection of reputation.
The paper focuses, from a criminal law perspective, on the dissemination of fake news through social media, in order to assess if it can amount to a crime and to scrutinize the criminal policy reasons behind several bill drafts proposing to punish such behavior. The said reasons must be assessed in light of the protection of truth with respect to the information to the general public, including the constitutional limits related to the criminalization of free expression (under article 21 of the Italian Constitution). After all, the point is understanding to what extent criminalizing fake news is consistent with the criminal policy as a whole, or they are rather a way to use criminal law as a tool for the suppression of dissent.
The passing of time has different relevance whether we deal with due process of law or ‘trials by media’: whereas the former develops over time, the latter has a basically momentary nature, considering that mass media tend to focus exclusively on criminal trials’ very first steps. This divergence increases on the internet, where the ‘judicial’ immediacy meets all-time data storage. Thus, it is clear that, as time runs, old criminal convinction-related articles, where not erased, corrected or simply updated, may end up infringing the defendant’s personal dignity. Moving from this framework, this paper aims at analyzing extent, virtues and limits of the ‘right to be forgotten’ in the peculiar context of criminal web-news.
The IT communication evolution and, even more, the key-role played by social networks facilitated the spread of hateful speech on-line. In order to avoid the dissemination of discriminatory opinions, not respectful for human dignity, it is crucial defining the role and the liability, if any, of IT intermediaries, in light of the contribution they give to spreading and hosting of on-line content, especially since they are the only ones who can practically remove unlawful messages. It is worth, however, checking if the punitive paradigm – and, more in detail, criminal sanctions – is the fairest, considering also the risk that repression would imply with respect to the freedom of expression and business freedoms of providers.
Starting from a strict interpretation of the meaning of trial by media and from the assumption that we are in the presence of a pathology of the press in dealing with legal matters, we have tried to ascertain whether the existing legislation, both at a national and at a supranational level – specifically the criminal law on defamation and illegal processing of personal data – is sufficient in itself to set a barrier to the widespread phenomenon of trials by media. The answer to this question seems to be affermative, especially when we refer to the secondary national legislation (selfregulation codes): however, on the operational level, this legislation has so far met several obstacles that could be overcome if the institutions were to give proper attention to this problem.
The reform of the crime of defamation has long been on the legislative agenda: a few years ago it seemed as though the unified text examined by both the Chamber of Deputies and the Senate had finally reached the stage of approval, but then, once again, the process was interrupted and the question left to the new Parliament. Recently, the issue has become topical again due to the ‘pressure’ generated by the ECHR case-law on the provision of imprisonment for defamation in national laws. Moreover, the transformation of the offence of insulting behaviour into ‘punitive tort’ by Legislative Decree N. 7 of 2016 should contribute to fuel the debate on the overall review of the regulation of the sector. The goal of the present work is to focus on the reform process, analysing the unified text approved by the Chamber of Deputies in June 2015, and now under discussion in the Senate, in order to underline its lights and shadows, while at the same time envisaging a different guideline for the reform.