Content Regulation / Censorship, Defamation / Reputation, Political Expression
The Case of Sarawak Report and Malaysia Insider
Closed Expands Expression
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Journalists Alessandro Sallusti and Luca Giovanni Fazio were under investigation for defamation against Judge Antonio Bevere, which led to Il Giornale daily newspaper’s webpage being blocked, Il Giornale.it, pursuant to a precautionary seizure order on March 7, 2014.
The Joined Chamber of the Italian Court of Cassation ruled that while the precautionary seizure of a website is generally permissible under certain circumstances, regularly registered online newspapers enjoy the same constitutional guarantees as afforded to print newspapers. The Court overturned its previous ruling that had treated the two forms of press differently.
The claimants in this case were two journalists, Alessandro Sallusti and Luca Giovanni Fazio, writing for the Italian newspaper Il Giornale. In 2014, they were under investigation for allegedly defaming Judge Antonio Bevere under Articles 57 and 595 of the Italian Criminal Code and Article 13 of the Law No. 47 of 1948 (Law of the Press). Following a precautionary seizure order during the preliminary investigations of the Tribunal of Monza, the webpage of the newspaper that contained the alleged defamatory article was blocked.
On March 31, 2014, the Tribunal of Monza upheld the order that blocked the website.
The claimants challenged the re-exam in front of the Penal Court of Cassation, under Article 606 (1)(b) and (1)(c) of the Criminal Procedure Code for not respecting and wrongfully enforcing the above mentioned criminal provisions and under Articles 125(3) and 111 of the same Code for failing to raise justification in upholding the order. More importantly, they argued that the block was in violation of the fundamental principles of equal social dignity and due process of law, as well as their right to freedom of expression, respectively guaranteed under Articles 3 and 21 of the Italian Constitution.
Additionally, they advanced two issues arising out of the block order: (1) the precautionary seizure was capable of causing a disparity in the treatment of online newspapers as compared to print media, where only probative seizure is allowed; and (2) that the existing Court of Cassation’s case law, such as the case of Montanari, No. 10594 of 2013, asserting that online newspapers are not comparable to print media and consequently are not entitled to the same constitutional guarantees, cannot be accepted.
The case was referred to and examined by the Joined Chamber of the Court of Cassation because it could create a jurisprudential contrast with its previous decisions.
The Italian Joined Chamber of the Court of Cassation addressed two main issues. First, whether the precautionary seizure of a webpage is generally permissible. Second, whether – except for the cases expressly provided by law – such measure can be properly imposed against regularly registered online newspapers.
Concerning the first question, the Court referred to its previous rulings, such as Ceraso No.32846 of 2014 and Montanari No. 10594 of 2013, in which the precautionary seizure of Internet websites were upheld.
As to the second question, the Court first discussed Article 21 of the Italian Constitution, which provides: “Anyone has the right to freely express their thoughts in speech, writing, or any other form of communication.” And that “the press may not be subjected to any authorization or censorship.” But “seizure may be permitted only by judicial order stating the reason and only for offences expressly determined by the law on the press or in case of violation of the obligation to identify the persons responsible for such offences.” Under the Italian Law of the Press No. 47 of 1948, “press” refers to “all the typographical reproductions or anyway [reproductions] obtained by mechanical or chemical-physical means.”
The Court also addressed the applicability of both international and regional human rights instruments, namely Article 19 of the Universal Declaration of Human Rights and Article 10 of the European Convention on Human Rights. The Court specifically noted the European Court of Human Rights’ position that the press is the “watchdog” of public powers, even if the expressed opinions are perceived as unpleasant.
The Court then referred to its prior case law that had excluded the constitutional guarantees for online expressions as the term “press” was referred only to “print paper.” In this case, the Court of Cassation overturned those rulings, reasoning that treating online expressions would create a clear tension with the fundamental principle of equality guaranteed under of Article 3 of the Constitution. Accordingly, the Court ruled in favor of a broader interpretation of the term “press” under the Italian Press Law. The Court, however, held that such interpretation cannot concern all new forms of Internet communication tools, such as forums, blogs, newsletters, mailing lists, and social networks. While they are entitled to the general protection of the right to freedom of expression under Article 21(1) of the Constitution, they do not enjoy the same guarantees relating seizure. For this purpose, the communication tool must have the same ontological (structure) and teleological (aims) requisites of a newspaper together with the informational objective.
Finally, the Court made reference that the European Court of Human Rights has already ruled in equalization between online and print newspapers, as evidenced in Wegrzynowsky v. Polonia (2013) and Martinez v. Sociètè MGN Limited (2011).
For these reasons, the Court held that the online newspapers are equal to the print media and therefore, they can be subject to seizure only if the law provides so. The Court concluded that the adopted precautionary seizure by the preliminary judge of the Tribunal of Monza was an indirect and an unlawful form of censorship.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s decision in this case supports freedom of expression because it ruled that online newspapers enjoy the same constitutional guarantees as afforded to print newspapers, and thus the censorship in this case was impermissible and unlawful.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
As adopted with the Italian Law 70/2003.
Ratification of the European Convention on Cybercrime
Adoption of the EU Directive on Electronic Commerce, art.12- 14 and 17 (3)
Law of the Press, art. 1, 2, 5 and 13
Art.1, definition of “editorial product”
Case significance refers to how influential the case is and how its significance changes over time.
The role of the Court of Cassation itself consists in tracing the jurisprudential position on issues and assuring the homogeneity of the law. This decision overturned the Court’s previous decisions, embracing a wider concept of “press” by also relying on international standards concerning the current communication tools’ environment.
Let us know if you notice errors or if the case analysis needs revision.