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Preliminary observations and recommendations by the United Nations Special Rapporteur on the promotion and protection of freedom of opinion and expression: visit to Italy, 11-18 November 2013

Rome, 18 November 2013

Members of the press, ladies and gentlemen.

It is a great privilege for me to be here and share with you my preliminary observations after completing my one week visit to Italy. Let me begin by thanking the Government for inviting me and facilitating the organization of an interesting programme.

During my visit, I had the pleasure of meeting the Minister of Integration, Ms. Cécile Kyenge, Deputy Minister for Foreign Affairs, Ms. Marta Dassu’, Under-Secretary of State on Publishing, Mr. Legnini, Under-Secretary of State for Justice Affairs, Mr. Cosimo Ferri, the First President of the Court of Cassation, Mr. Santacroce, the Attorney General, Mr. Ciani, members of the Parliament and a number of senior officials. I am particularly grateful to the Minister of Integration, Ms. Cécile Kyenge, for her interest and the valuable time she invested in meeting with me. I also had the opportunity to meet with journalists, academics and members of civil society organizations, who also contributed greatly to my understanding of the situation of freedom of expression in Italy.

Throughout the visit I have been received with warm hospitality, and all levels of Government, as well as other relevant actors, have been open and constructive. I would like to take this opportunity to thank all those who have given me their time and extended co-operation. Furthermore, I would like to thank the President of the Senate, Senator Pietro Grasso, and the President of the Chamber of Deputies, the Honourable Laura Boldrini, for hosting and inviting me to a public event on freedom of information at the Senate. This event brought together State media authorities and civil society organisations, which I believe might serve as a useful model for multi-stakeholder dialogue in these matters.
You will find in this room a short note explaining my responsibilities as Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. I am an independent expert who reports to and advises the UN Human Rights Council and UN General Assembly. I am not a member of the UN secretariat and I am not paid by the United Nations. As an independent expert, I exercise my professional judgment, and report to the United Nations.

What follows are my preliminary observations and recommendations which will be further developed in the report that I will submit to the United Nations Human Rights Council when it meets in June next year.

The aim of this visit was to understand and assess, in a spirit of cooperation and dialogue, the situation on the right to freedom of opinion and expression in Italy and the measures taken for its realization. I was interested to learn about media-related regulations and, in particular, those in respect of oversight and ownership, as well as issues related to privacy and hate speech.

National Human Rights Institution

I have been informed that a bill on the establishment of a human rights commission was presented to the Parliament in February this year. I strongly support this initiative and would like to encourage that such an institution be established without further delays and in accordance with the Paris Principles. The establishment of such an institution is crucial for promoting and monitoring the effective implementation of international human rights standards in the country.
Access to information law

In respect of laws on access to information, I believe that such laws should extend further than the current legislation (Decreto Transparenza, of 14 March 2013) and should guarantee transparency and credibility to all state institutions. Furthermore, the right to request information should be applied to all individuals, as in the existing law. Access to information laws should also be accompanied with the establishment of an independent state authority to guarantee the exercise of this right and the effectiveness of this law. Therefore, I would recommend that Parliament enact a full access to information law, guaranteeing citizens access to public information on financial and political matters with the least possible restrictions.
Decriminalization of defamation

I would like to congratulate the Chamber of Deputies for their initiatives to remove the prison sentence for the crime of defamation, which I believe is an important first step in guaranteeing freedom of expression. However, I strongly believe that defamation should be decriminalized completely and transformed from a criminal to a civil action, considering that any criminal lawsuit, even one which does not foresee a prison sentence, may have an intimidating effect on journalists. Furthermore, criminalising defamation limits the liberty in which freedom of expression can be exercised. I would also like to draw attention to the fact that if an economic penalty is applied through criminal law, it will most likely also be followed by civil economic reparation to the victim, thus imposing a double economic sanction.

I would like to recall Resolution 1577 (2007) of the Council of Europe Parliamentary Assembly which also recommends the complete decriminalisation of defamation for the protection of freedom of expression. Following this resolution, defamation, libel and slander have been reclassified as a civil action in most European countries. Considering that the amended defamation law in Italy has only abolished the prison penalty, I would call upon the Senate to fully comply with this directive and completely decriminalise defamation returning this bill to the Chamber of Deputies.

I would also encourage the Senate to revise the amount of the reparation, given that an excessively large fine can have a deterring effect on journalists and other persons in their exercise of freedom of expression. I would strongly encourage the Senate to maintain the principle of proportionality and to set a reasonable ceiling on the fines imposed.

Interestingly, a recurring argument that I have heard in many meetings during this visit is that a victim of defamation would normally prefer a criminal to a civil proceeding, due to the fact that a criminal procedure is faster. I do not believe that this is a valid or fair argument. Rather, the solution to this issue would be to establish a more efficient and expedient procedure in civil courts.

With regard to the right to rectification of information, I believe that it is important to uphold such a right, but this should be leveled with the right of the press, or the other party, to present and defend their arguments. A public correction should eliminate the cause for any legal action by the offended party. The purpose of defamation is not to punish the person expressing his or her views, but to correct wrong information expressed and the harm that it may have done.

I would also urge Parliament to repeal Article 341-bis of the Criminal Code which punishes insults directed to public officials in the presence of other people. By virtue of their function, public officials should not be protected against criticism or insults at a higher level than any other people.

Frivolous litigation

In the same context, it is equally important to look into the issue of frivolous litigation. If misused, frivolous litigation can become a form of “judicial harassment” against the press or anyone exercising freedom of expression. Even if the claim is dismissed, the economic impact of the expenses incurred for defense can seriously limit the exercise of freedom of expression and can have a paralysing effect on the journalist or the media concerned, as well as on others engaged in investigative journalism. In order to discourage the practice of frivolous litigation, in addition to the legal costs, the law should establish an economic penalty representing a percentage of the initial amount of civil reparation requested.

Hate speech

According to Article 20 of the ICCPR, hate speech against any group must not be tolerated in a democratic society. Although the State does not have the responsibility to protect individuals from offense, it does have the responsibility to protect them from harm, whether it is discrimination or violence. Of particular concern is the use of hate speech against migrants and other minorities in electoral campaigns, which I regret is becoming increasingly common in many European countries, partly as a consequence to the financial crisis.

During my meeting with Minister Kyenge, I learned about policies aimed at enhancing the integration of migrants and other minorities. I deeply regret the phenomena of hate speech and discrimination, which seriously affects and undermines the dignity of individuals. I strongly support the Government, and in particular Minister Kyenge, in their fight against this scourge, not only by complying with European and universal standards, but also through awareness raising programmes, including information and education campaigns on diversity, which can contribute to better communication and understanding among different ethnic groups. In this respect, I believe that prevention is the most important tool and that such educational programmes can contribute to eradicating ignorance, which is often the root cause of these unacceptable attitudes and behaviours.

I would like to take this opportunity to welcome the proposed bill on homophobia and transphobia, which I believe is an important first step in addressing discrimination against the LGBT population in the country. However, I believe that this bill should be further amended in order to eliminate all exceptions for institutions or particular groups, which might generate loopholes in its application. I would further encourage Parliament to consider a law on other forms of hate speech, such as misogynistic messages, incitements to violence against women and persons with disabilities.

Transparency of media ownership

During my visit, I had the opportunity to exchange views with many relevant stakeholders with regard to media ownership and control. I think that public information on ownership, control and sources of revenue of the media would allow the public to better interpret the position of the media and would contribute to preventing monopolies, cross-ownership and unlawful concentration of the media.

While I appreciate the openness of the discussion and the existing legislation, I would still like to call for a legislative reform which would introduce the explicit incompatibility between holding elected or government offices and ownership of media. Such recommendations have previously been reiterated by the Venice Commission in 2005 and I regret that they have not yet been introduced. Therefore, I would recommend that the amended law establish an obligation to disclose the full identity of the ownership of the media and the mechanisms on decision-making and control therein. This information should be made accessible to the public by the regulatory body. I also believe that it would be important that AGCOM, as a regulatory body, receive information on the sources of revenue of the media and also make this information publicly accessible.

Anti-trust

I have been informed that the Gasparri Law, which banned cross-ownership of broadcast and print media was amended in December 2012 . The new law has removed the ban on television broadcasters who operate more than one national channel to own or purchase shares of publishing companies of newspapers.. I consider this a setback and would like to reiterate concerns which have been raised by the Venice Commission which stated that this could allow incumbent broadcast media groups to expand into the print media sector. I would therefore like to recommend the introduction of a legislative overhaul of the radio-television normative system, especially the anti-trust provisions. This would allow Italy to overcome the excessive concentration of media and the possible establishment of monopolies, which limits diversity and plurality of freedom of expression and challenges democracy.

Regulatory bodies

I believe that all activities of state institutions should be performed in representation of the citizens, seeking the common good. Therefore, all of the activities of state institutions should be public information and easily accessible to anyone for monitoring purposes, with exceptional limitations related to diplomatic communications, criminal investigations by the Court, the protection of children, and during the development of national security operations. In this context, it is particularly important that the activities of regulatory bodies be completely transparent. I would call upon the Parliament to establish a mechanism that would ensure transparency of the election processes of the board members of regulatory bodies. This should include publishing the selection criteria for the board members. In addition to this, the information on the qualifications, and professional experience of the applicants should be made easily accessible to the public, including through internet. The short-listed candidates for board members should be called to a public hearing in the Parliament and the final decision should be made through a public vote.

AGCOM

The issue of intellectual property in the context of freedom of expression has been raised in a number of meetings during my visit. All regulations regarding constitutional rights and, in particular, those related to freedom of expression, should be approved by Parliament. As an independent authority, AGCOM has the mandate to apply the existing regulations established by law. With this purpose only, they are empowered to adopt their own administrative regulations.

One of the issues of concern is the role of AGCOM in creating penalties with regard to intellectual property, as I believe that this is in the purview of the Parliament. While AGCOM may by law apply some limitations on on-line contents, the take down of an on-line content should be decided by the Court on a case by case basis.

Public broadcasting service

With regard to broadcasting, I would like to stress that I am a strong believer in the existence of public service along with private and community broadcasting. It is nevertheless of utmost importance to ensure the independence of a public service. It has been brought to my attention that 2 out of 9 RAI board members are appointed by the Government. Furthermore, the concession on the frequencies used by RAI , as well as the public service, is granted by the Ministry of Economic Development. All this has a serious impact on the independence which any public service should have, and can generate doubts on the independence of the public broadcasting system. Moreover, with regard to the General Service Contract between RAI and the State, particular attention should be given to guaranteeing the implementation of the principle of diversity and pluralism. The right to challenge the compliance with the provisions of this public service contract should be extended to all citizens through a judiciary procedure.

I would recommend that RAI be established under an independent body of the State, such as a trust fund or a broadcasting institution, and be administered as a public asset. It is of equal importance to ensure that the appointment of the members of the board of RAI be conducted in a transparent way and in line with the same procedure that I have recommended for regulatory bodies.

In this context, I would like to welcome the initiative to hold open consultations with all stakeholders, including civil society, to discuss the future of the public broadcasting service, scheduled to take place in 2016.

Protection of journalists

The role of journalists and social communicators is as relevant to a democratic society as is the role of human rights defenders, because they become a guarantee of the enjoyment of human rights and facilitate information to society which allows full citizen participation in public life. Despite clear normative protection provided by international human rights law and international humanitarian law, journalists and other media workers continue to suffer threats of violence and attacks in all regions of the world.

During my visit, I heard testimonies by journalists and social communicators that had suffered from threats, intimidation and assaults in the exercise of their profession. I deeply regret that in many cases, threats and attacks against journalists occur with impunity. In this regard, I welcome the statement made by the President of the Senate in December 2012 which recognized a need for a law that will sanction anyone who obstructs the exercise of freedom of information. I fully concur with this statement and would call upon the Parliament to enact a legislation that would establish the crime on intimidation, threats, harassment and acts of violence against journalists and social communicators.

I was also appalled to hear about the extremely low remuneration that journalists receive for their work. I would recommend that standards, including tariffs for fair remuneration, be set and applied urgently. A system should be set up and should be regularly revised and updated in line with the cost of living indicators.

Conclusion

Finally, I appreciate that this is a period of transition in Italy and would like to encourage all State authorities to take this opportunity to enhance human rights and fundamental freedoms, in particular their commitment to protect their right to freedom of expression.