The right shall apply to judicial records not covered by secrecy. And it is necessary to recognize journalists’ legal status in order to save them from thousands of vexatious legal actions
This speech was delivered by Alberto Spampinato, director of Ossigeno per l’Informazione, in Rome, on February 27, 2018, at the Central National Library during the ASR-Ossigeno training course on the theme “Freedom of the press and access to judicial and administrative sources”
It is evident that judicial information sources are very important for reporters. It is also clear that access to this information involves great problems. Firstly, this access is not regulated in a positive way – that is to say what are the correct forms and channels to use, which certainly ca not be just the announcements from officers of the Prosecutor’s offices. This access is governed by customs that contradict and actually exceed prohibitions, limitations, penalties for offenders and give rise to particularly stringent and invasive judicial initiatives against those who publish information from so-called “leaks”: searches, seizures, obscuration of web pages and blogs, orders to reveal the source by renouncing professional secrecy, convictions for arbitrary publication of acts or violations of investigative secrecy. Some of these initiatives exceed the limits imposed not only by fair play but by the jurisprudence of the European Court of Human Rights, which places strict limitations on the personal searches of journalists and editors and the seizure of archives, computers and other working tools proper of reporters.
All this provokes endless discussions and weighs heavily on the activity of reporters and newspapers because they, in addition to the difficulties of obtaining information, must sustain a strong and widespread pressure and intimidation by way of threats, retaliations and lawsuits for defamation. In the 90% of cases, attacks are deemed specious and unfounded, originating from subjects who believe they have been unfairly damaged, not only by excesses and undue offenses against their personal reputation (which there are, but are less than 8 percent of cases) but rather by the pure and simple publication of information that puts them in a bad light.
This phenomenon is unfortunately not a marginal one, and it does not affect the freedom of expression, nor is it irrelevant to the specific problem we are dealing with, because such attacks are totally redundant. They weigh a lot, because they are instil fear, especially when 99 percent of cases go unpunished.
According to the monitoring of Ossigeno per l’Informazione, the reporters and bloggers affected by these attacks from 2006 to today have been over fifty thousand. In 2017, the Observatory listed the names of 423 of them, in the first month of this year they listed 31 others. From 2006 to date the names listed on the Ossigeno list are 3537, and they increase day by day. Each of these names corresponds to a serious violation of the freedom of press and expression that Ossigeno has accurately verified and reported reliably, as has repeatedly certified the Parliamentary Anti-Mafia Commission, recognizing the nature and the size of the problem and recommending to Parliament to deal with it urgently through specific legislative measures.
To describe the difficulties of a judicial reporter who seeks to know a judicial act not covered by the secret of investigation, for example a pre-trial detention order already executed, I will quote the words of the ANAC president, Dr. Raffaele Cantone, who has with precision and acuity in a recent article said that:
“Depending on the circumstances, (the reporter) must rely on the “benevolence” of the investigators, of a lawyer, of the official on duty. It may seem secondary but it is by no means a neutral question. On the contrary, it ends up being an obvious distortion, because this situation does not allow an equal relationship between the source and the journalist. Precisely because of this subalternity, in fact, the latter (the journalist, ed) is likely to be induced to nourish gratitude to those who pass the “cards”, with the risk of undermining the impartiality of which he should be a standard bearer.”
“(…) How can one think that the press exercises its role, constitutionally recognized, if it does not then put it in a position to perform this demanding task in the best possible way? And again: can this field remain unregulated in a system that has already introduced the FOIA? So why not remedy this shortcoming by giving journalists access, even if respectful of the rights of the parties involved in the trials, to the deposited documents? The advantages would be multiple: we would have the guarantee of less unbalanced information and the risks of unclear reports with the sources or of manipulation that may derive from “privileged” access to the investigative documents would be reduced (read).
Dr. Cantone says so and has been saying so for ten years, if I’m not mistaken. I fully share this proposal with him ever since. I agree, by repeating and making these words my own:
“I think that such an important issue, which is crucial for our democracy, requires that a public debate be really opened and that which is today a tolerated hypocrisy is overcome”.
I believe that the proposal to “allow journalists respectful access to acts” with a specific provision is even more motivated after the recent update of the FOIA. This update of 2017 has disappointed the legitimate expectations of journalists to see this and other problems solved, stating that there can be no delivery of acts of public administration without the consent of the opposing parties. This applies to everyone, therefore also to journalists. This risks compressing the right already recognized to journalists to know and publish information without the prior consent of the opposing parties. Dr. Cantone is the best expert on the subject, and will tell us if it is not the case. It indeed seems so to us,also according to a study by the Ossigeno legal expert, lawyer Andrea Di Pietro, published on our website.
This last question brings us however to what I consider the biggest and most general unresolved problem: a special law for the press is lacking so as to establish an appropriate legal status for journalists who respect the obligations of correctness and the ethical duties and on which supervisory bodies exist, armed with sanctioning powers. Today, in Italy, these obligations and responsibilities do not correspond to adequate prerogatives. The law does not protect the journalist from the unfair consequences to which he is exposed during the proper conduct of his activity, does not protect him as it would be necessary in view of the fact that the right of information that he exercises in the public interest prevails over other rights with which it conflicts in a routine way, for example, the right to privacy, personal reputation, honor.
Other professions have laws that confer a legal status appropriate to these purposes. Just think of the doctors, lawyers, magistrates, law enforcement agencies … Each of these professions enjoys special privileges and prerogatives, due to the role of public interest recognized by the law according to the role of public interest that they cover and with the limitations imposed by ethics and the rules of their own category.
Why is this not also formally recognized to journalists?
The journalist plays an undoubted function of public interest, but responds to every act as any citizen. If, in order to inform public opinion, it harms someone and the latter challenges the violation of confidentiality or offense to reputation, as is often the case, he is subjected to a trial and must prove to a judge that he has acted correctly in order to perform a duty, as imposed by law, international treaties, and article 10 of the European Convention on Human Rights.
The most striking example of these disparities is the application of the rules on defamation in the press against journalists. Who, albeit respecting the ethical rules and duties of correctness, publishes a true, well-founded, reasonably probable, current and public-interest news, reporting that a public figure (thus having a less extensive right to protect their reputation and confidentiality ) has had a negative behavior that makes him appear in a bad light, can be sued even if his correctness is obvious, and must face a trial and prove his innocence. A ruling is necessary to establish that it is not punishable under Article 51 of the Criminal Code, having exercised a right. The legal norm is the article 2 of the law n.63 / 1963 with which the Order of Journalists was established, according to which “the freedom of information and criticism is the irrepressible right of journalists”.
This twisted, unjust, punitive path, which we should eliminate establishing equal treatment with other professions, is imposed every year to at least five thousand journalists, according to official data of the Ministry of Justice, published by Ossigeno per l’Informazione. Performing this path requires an average of two to six years, and entails legal expenses for the amount of 54 million euros, almost all charged to journalists. This injustice encourages the spurious use of complaints and causes for damages for the purpose of intimidation.