The delays Italy must explain to the UN

26 October 2019

Non-compliance with regard to information freedom indicated by Ossigeno to the Human Rights Commission in view of the four-year review scheduled for November in Geneva

Every four years the countries adhering to the United Nations must respond to the objections presented by other States and by non-governmental organizations on the effective fulfilment of the obligations set by the Treaties and international standards regarding the respect for human rights and, in this context, also on the respect of the right to information. 

The issue is discussed by the authorities of each country before the Human Rights Commission of the UN, in special sessions taking place in Geneva, as part of the Universal Periodic Review (UPR).

The next review for Italy is scheduled for November 4^th 2019. In view of this appointment, as was done four years ago, the Italian Committee for Human Rights ( CIDU), a non-governmental organization that brings together 40 associations including Ossigeno per l’Informazione, presented a series of observations on each individual issue, outlining the problems to be solved and possible remedies.

Ossigeno has compiled the chapter concerning the right to information. We give a preview of this contribution below, which will be announced in the coming days together with those of the other associations in a report that we recommend to anyone who wants to know with objectivity and precision what the delays and the deadlines of Italy are in this vast a field that ranges from the rights of women and children, from the reception of migrants to the protection of press freedom and the protection of journalists from intimidation and threats that prevent them from reporting what they learn and which would be useful and necessary to communicate to citizens without risking personal safety, work or  assets.

Italy does not meet numerous UN standards regarding the right to information. Therefore, since the first meeting with the UPR, numerous recommendations have been made, most of which have not been accepted by the Italian government. They concern in particular the freedom of the media, the conflict of interests between politics and publishing, the governance of the public broadcasting service, imprisonment for libel, the vexatious and intimidating use of libel laws and the protection of journalists from threats from organized crime.

During the UPR II, in October 2014, the Italian government accepted the following three information-related recommendations:

1. CONFLICT OF INTERESTS – “Promote and protect media pluralism, including in the relevant legislation, the principle of incompatibility of elected representatives or those who hold a government office with ownership and control of the media”

2. IMPUNITY – “Investigate and prosecute all perpetrators of violence and intimidation crimes against journalists”.

3. 3 LEGISLATIVE REFORMS – “Take the necessary legal measures to protect journalists and investigate all acts of intimidation and violence against journalists”.

Regarding the regulation of the conflict of interest, numerous problems have remained unresolved. With the Bressa Bill (1) see http://leg17.senato.it/service/PDF/PDFServer/BGT/00966134.pdf

which was discussed but not approved, the Italian Parliament tried to integrate the current legislation on the subject of the recommendations, namely the “Gasparri Law” (N.112 2004) and the “Frattini Law” (N.215 2004). The Bressa Bill proposed to regulate in a more incisive way the conflict of interests and the incompatibility between the elective and governmental offices on the one hand and the owners or controllers of the mass media on the other hand, updating the norms of the Gasparri Law and the Frattini Law. The Bressa Bill was approved at its first reading on February 25^th  2016 by the Chamber of Deputies, but it did not enter into force because the Senate did not ratify it.

With regard to the governance of public sector broadcasting, the legislation was amended by Parliament with Law No. 220/2015 (2) see https://www.gazzettaufficiale.it/eli/id/2016/01/15 / 16G00007 / sg) but not in the sense indicated in the recommendation. The reform was approved by the Italian Parliament on December 22^nd 2015, with the positive opinion of the Renzi government. With these rules, the executive has further strengthened its influence over RAI (the State broadcaster). In fact, two of the seven members of the Board of Directors are appointed by the Government, two by the Chamber, two by the Senate and one by company employees. Furthermore, the managing director, endowed with extensive powers, is appointed by the Board of Directors, on the advice of the Minister of the Economy. In this way, Italy has not accepted the observations and recommendations formulated long ago by international bodies, in particular by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression of the UN Human Rights Council, which has repeated previous negative assessments of Italian legislation in this area by the OSCE High Representative for the Media and the Council of Europe’s Venice Commission.

IMPUNITY of the perpetrators of violence and intimidation against journalists. In Italy there is much violence, abuse and intimidation against journalists. The likelihood of impunity, some non-compliance and the nature of some laws encourage the perpetrators of these acts. This is clearly documented by the monitoring of Oxygen for Information. This NGO between 2006 and 2018, recorded in detail over 3700 grave violations (and 265 more on the only 2019) against as many journalists and bloggers, half of which were committed with punishable offenses. In 2017 the same NGO published hitherto unpublished data according to which the impunity for the perpetrators of these violations is very high, equal to 98.3 per cent.

In 2018, in a report delivered to UNESCO (see here and also here) Ossigeno reported a slight but significant improvement, i.e., decline in this rate of impunity (0.4 per cent) attributable to three factors: the greater awareness raised by the constant monitoring of the phenomenon, a greater determination of the judiciary and investigative apparatus and charging the accused with the most serious violence of an aggravating nature that justifies the arrest. This reduction in impunity was achieved under unmodified legislation. This shows that even in previous years more could have been done. Further progress would be possible by disseminating a better understanding of the norms of international information law among judges and investigators and of the prerogatives that laws and treaties recognize for journalists and other media operators. Even in 2019 the impunity rate fell a little, but less than the previous year.

LEGISLATIVE REFORMS

The legislative and procedural reforms envisaged with the recommendations and still not implemented are necessary, both to reduce impunity and to create a deterrent capable of curbing the uninterrupted flow of violence and abuse that is also occurring, daily, in 2019 as documented by the monitoring of Oxygen for Information.

The situation requires the modification of highly punitive laws against journalists and the full legal recognition of the prerogatives that must also be recognized at judicial level available to those who report in the public interest exercising their rights within the limits set by Article 10 of the European Convention on Human Rights.

The only improvement at the legislative level was in 2016, when the Italian Parliament decriminalized the offence of offensiveness. Instead, it has left unchanged the Law on the press n.47 of 1948 and the articles of the penal code and of penal procedure that allow exploiting libel lawsuits for intimidation and retaliation, producing a strong chilling effect.

For those guilty of libel Italian law provides for a fine or alternatively a prison sentence (up to six years in prison). It also allows disproportionate compensation, of a theoretically unlimited amount, without particular documentation of the patrimonial and non-patrimonial damage actually suffered. To modify these rules so as to accept the recommendations received by the Italian Government, Parliament has discussed for four years, from 2013 to 2017 the Costa Bill, without however approving it. (see here). This bill proposed eliminating imprisonment for libel offenders. Secondly, it contained some rules necessary to put a stop to the frequent distorted use, for intimidating purposes, of libel suits. The situation has therefore remained that for which Italy has received these recommendations. A situation that produces a strong chilling effect and the obscuring of many incisive news reports of public interest.

In 2016, the gravity of the effects of the current legislation on libel was acknowledged by the Ministry of Justice, which disclosed the following data: (see here) in the 2011-2014 period, each year, for the offence of libel, the courts of first instance handed down 155 prison sentences (mostly to journalists). The average prison sentence was eight months (almost always suspended). 90 per cent of the accused (5904 each year) were acquitted, after a 2-4 year trial. The legal fees have often been charged to the accused. The number of these proceedings increases every year by eight per cent. Many instrumental, spurious and unfounded procedures would be avoided if journalists were recognized as fulfilling the right to information as configured by Article 10 of the European Convention on Human Rights and by the jurisprudence of the ECHR.

PROTECTION OF THREATS – The security forces protect 585 high-risk individuals with armoured cars and armed escorts. Among the protected there are 22 journalists. A further170 journalists, targets of non-lethal threats, are protected by agents who monitor their homes or their places of work. Thousands of other threatened journalists have no protection. The situation was described in the Report “A lot of mafia, little news” (cf)

PARLIAMENTARY INVESTIGATIONS – The Parliamentary Anti-Mafia Commission has carried out two investigations, one in 2012 the other in 2014-2015 (see here), on intimidation and threats to Italian journalists. Based on the findings, on an Ossigeno Report and on dozens of hearings, it described the difficulties, risks, and unresolved problems of Italian journalists. At the conclusion of each investigation it made some urgent recommendations to the Government and Parliament, which so far have not been taken into account. Among other things, the Commission asked for: more protection for journalists; a verification of the actual ownership of the media for which mafia infiltrations are suspected; the full recognition of professional secrecy for reporters, modification of the crime of libel and a brake on the intimidating use of lawsuits.

ASP