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ISSN 2611-8858


Freedom of Expression

Defamation Through the Press and Freedom of Expression in a Framework of Integrated Protection of Fundamental Rights

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.

Corruption, Freedom of Speech within Campaign Finance Law in the United States

Within the US legal system, freedom of speech and corruption show an interesting point of tangency in the area of the campaign finance regulation. The crucial issue is whether limits imposed on campaign spending represent a restriction on the constitutionally protected political speech, and, thus, whether they violate the US Constitution. This article surveys the most significant US Supreme Court case law about the interactions between freedom of speech and corruption. In particular, analyzing the equation given by the Supreme Court between money spending for political purposes and political speech, this essay criticizes the use of the strong shield of the First Amendment for protecting actions that – as explained – may fall (far) outside the freedom of speech zone

Criminalisation of Fake News Between the Protection of Truth and the Suppression of Dissent: Towards a New Criminal Law Symbolism?

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.

Eternal Sunshine of the Spotless Crime. The Right to Information and the Right to be Forgotten in Times of Trials by Media

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.

Hateful Speech in the Digital Era: Which Role for the ISP?

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.

Crimes of Word. Anti-terrorism Offences of Word in the Age of the Means of Communication

After framing the category of “crimes of word”, the Author dwells on the vari-ous anti-terrorism offences belonging to that group of crimes, while pointing out the specificity related to the use of the newest means of communication. The study brings the Author to question the boundaries of criminal law with respect to the criminalization of purely verbal behavior, in relation not only to the traditional theme of freedom of expression, but mainly to the possibility to punish words that only “arrange” the commission of a crime.

Memory, Truth, Punishent. Is It Still the Time of Freedom of Expression?

After analysing the concepts of memory, historical truth and legal truth from an epistemological perspective, the author focuses on the problematic relationship between the liberal-democratic constitutions and the so-called memory laws. When such legislative interventions introduce criminal sanctions, they bring with them serious is- sues of compatibility with the guidelines of criminalization in constitutionally oriented criminal law, and seem to be in contrast with the freedom of expression and the constitutional principles of public speech, aimed at defining the procedural conditions of political integration.

The "Loop-de-Loop": Criminal Justice and Mass Media, Legislation and Practice

The Author depicts the reality of journalism in the field of criminal justice, with particular emphasis on the factors that actually arouse media distortion of crime, by suggesting (more) effective sanctions for wrong exercise of freedom of press and by warning against the pitfalls - more or less - hidden in the Bills currently before Parliament.

Freedom of Information and Criminal Procedure According to the Jurisprudence of Italian Constitutional Court and the European Court of Human Rights: Problems and Perspectives

The relationships between freedom of information and fair course of justice, with particular regard to criminal trial, are issues nowadays more and more relevant, due to degenerative phenomena of "trial by media". Constitutional studies need a clear consideration of the need to make balance between principles and involved values, as proved by the difficulty of writing a proper "Charter of relationships between judiciary and media". In this sense, the analysis of the decisions of the Italian Constitutional Court and the European Court of Human Rights offers many insights – even when it is necessary to innovate legislation. The recent European Directive (EU) 2016/343, which should be implemented within 1 June 2018, acknowledges several orientations coming from case-law of ECHR and confirms an extensive interpretation of the 'presumption of innocence', shifting-away from mere procedural safeguard to constitutional freedom, i.e. as right to be considered innocent unless guilty is legally proven.

The Relationship Between Criminal Proceedings and the Media in the Case-Law of the European Court of Human Rights

The present article is aimed at assessing a number of key judgments delivered by the European Court of Human Rights which touch upon the relationship between criminal proceedings and the media. On the one hand, it will identify which rights are affected, while on the other hand it will explore the manner in which such rights may enter into conflict with other rights or collective interests. Particular emphasis is placed on how the Court conducts the balancing exercise between the different interests at stake in the following areas: statements to the press and press conferences held by public officials with regard to pending criminal proceedings; the release to the press, by public authorities, of images of individuals under investigation; leaks concerning investigation activities.