In the Italian Constitution the word “information” does not appear in any of its 139 articles. Nor are anywhere in the text any expression that explicitly manifests the right to inform and be informed, to seek and impart information and opinions freely, already proclaimed in the 1948 Universal Declaration of Human Rights Article 19. Probably for historical reasons, the Italian Constitution does not explicitly state that press freedom is a common good, a defence of democracy, indeed its prerequisite. Moreover, the entire Italian legal system does not provide for sanctions and penalties to suppress deliberate behaviour implemented to obstruct the freedom to inform and be informed. On the contrary, the rules that deal with information – from the Criminal Code to the press law – are designed to contain and limit that freedom so as to respect other rights or, as they say, to crack down on the abuses that journalists and editors could perpetrate on those freedoms.
Current regulations are intended to delimit the exclusive exercise of the right to information. The more punitive rule requires that for the crime of aggravated defamation through the attribution of a given fact, a journalist faces up to six years in prison. It is paradoxical that this rule was not introduced by the Criminal Code of 1930, but by the law No 47 of 8 February 1948, by a Republican law, approved by the Constituent Assembly on the basis of the seventeenth and final transitional provision of the Constitution. Therefore a law of a newly reborn and democratic Italy. Not one from the penal code of the fascist period. There are other examples of Laws that are limiting to the prerogatives of information operators and should therefore be updated.
Professional confidentiality is fully recognized by Article 200 of the Code of Criminal Procedure to a number of figures, but not to professional journalists (publicists are completely excluded) to which the court may order the disclosure of the source of fiduciary news. If the reporter does not comply with the judge’s order, he is likely to face prosecution for perjury (for reticence): statutory penalty of two to six years in prison.
Furthermore, to better understand Italian law it is necessary to understand that the legislation provides for two types of journalists: “professionals” and “publicists”. The former are protected by the code but not completely. In fact, the court may order to reveal the confidential source of information if it is essential for the proof of the crime. The latter are completely excluded from the Criminal Code. If the “professional” journalist refuses to reveal the source he can be prosecuted for the crime of perjury and risks two to six years in prison.
The fact that access to public administration files is not permitted to citizens (except for those that are directly affected by them), as well as to reporters, helps limit the collection of information that is in the public interest and the control function of journalism.
The free flow of information has other obstacles placed in its way, that are from time to time defined as right to privacy, secrecy or inquiry, or State investigation. Between the rights of citizens (and journalists) there is no right to a direct access to the acts of the public administration. In Italy there is no law yet that is the equivalent of the Freedom of Information Act, or similar, which have been in force for years, if not decades, in countries such as Sweden, the US, Britain, to ensure the transparency of the public administration. Unfortunately these innovations are slow and in the meanwhile new laws add other obstacles, other logjams, some born from noble intentions. For example, the right to be forgotten and the extension of the rules laid down for the printed information extended to the web media provided by the draft law on defamation in a simplistic way. The matter is a delicate one. An “easy” and generalized recognition of the right to be forgotten can result in the cancellation of the historic and collective memory. To destroy the contents of paper and digital archives is a dangerous activity, which can border on (or, indeed, overlap with) repressive censorship. Strangely enough, the orientation of the jurisprudence of the Supreme Court would pronounce quite differently on the updating of newspaper archives and search engines.