Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Contracts Expression
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The Italian Supreme Court ruled that the meaning of a title standing alone and independently of the content of the article was capable of being defamatory. Salvatore Cuffaro brought an action against “La Repubblica’s” publisher, director and a journalist in respect of an article in titled “The Boss and the Governor” which referred to the plaintiff, who, at the time of the publication, was the President of Sicily. The Court reasoned that the title of a newspaper article by itself can be defamatory, in particular in light of the platforms through which information is currently distributed and organized with many readers digesting information at speed and from perfunctory headlines so that every single part of the article, such as the title and the photographs, should be equally important in the assessment of the defamatory content.
The case concerned allegedly defamatory statements in an article titled “The Boss and the Governor” published in the newspaper “La Repubblica” on November 6, 2003. The plaintiff brought a legal action in the Court of Caltanissetta against the publisher “L’Espresso“, its director and the journalist of the article in question, asking for damages. In particular, the plaintiff, who at the time of the publication was President of the Sicilian region, claimed that the combination of the news and photographs implied a connection between him and one of the bosses of the Italian Mafia. The Court rejected these complaints in favour of the journalist but upheld them against the publisher and its director, imposing a fine of 50,000 euros.
On June 10, 2014, the Court of Appeal allowed an appeal by the newspaper and ordered reimbursement of the sums which the plaintiff had received. The Court of Appeal considered that the Palermo judiciary’s investigations and measures at the time the article was published provided sufficiently objective evidence to demonstrate the proximity of the plaintiff to subjects implicated in activities carried out by a criminal organisation. Moreover, his institutional role as President of the Sicilian Region justified an extension of the scope of the right to inform and criticize.
The Court of Appeal referred to case-law criteria justifying the right to inform and criticize, in particular the public interest of the news and the substantive accuracy of the facts reported in the news, and considered that in this case there was current public interest and the article was not unfair to the plaintiff. Indeed, the Court said it could not exclude the relevance of facts that had emerged during criminal investigations. It stressed that those who carry out political activities must tolerate the legitimate exercise of the right to criticize. The Court also stated that the defamatory nature of the title and subtitle of the article in question could not be assessed without taking into account the entire text of the same article.
The plaintiff appealed.
Before of the Italian Supreme Court, the plaintiff claimed that, according to Italian case law, the publication of titles, photographs and captions, even separately, could constitute defamation. Further, he submitted that it would be difficult to consider that the combination of the article with the photographs in question did not constitute an act of defamation, especially given that at the time the article was published he still enjoyed the presumption of innocence and had never been accused of the crime of mafia association. He said that the Italian Supreme Court had already addressed cases in which the sole title of an article, read together with other elements such as subtitles, could be independently considered defamatory, without taking into account the rest of the article.
The Supreme Court referred to previous jurisprudence holding that in order for a title alone to be defamatory, it was necessary for it to be formulated in terms that make it clear, unambiguous and fully comprehensible to the reader without having to read the article. If, on the other hand, the title is general, then its defamatory content must be assessed by analyzing the entire content of the article.
The Court then referred to a more recent decision which held that it was not necessary to adopt a forensic analysis of an article but to make an overall judgment based on its content but in respect of which the title had a special value. It went on to say that the peremptory nature of the title in this case was likely to mislead the hasty and superficial reader in the same way that a superficial reader might pick out statements that were more derogatory than others in the article and be mislead but that in both instances reputation could be damaged.
It said that it was undisputed that the channels of communication had become more rapid and accessible with the Internet and that therefore the assessment of the title of an article and its defamatory potential had become more relevant. The Internet encourages readers of newspapers and journals to merely scroll through headlines, perhaps through the home page on the Internet, which only shows superficial information. As a consequence, the assessment of defamatory content by reading both the title and the article is less important than in the past, precisely because the distribution and use of information has become faster and the superficiality of the readers is predominant.
According to the Italian Supreme Court, the Court of Appeal did not answer the question that had been asked in the appeal, because it did not explore whether or not the title of the article together with the subtitle and two photographs had a defamatory meaning, independently from the content of the article. As a result, the previous decision was dismissed and the judgment was referred back to the Court of Appeal of Caltanissetta.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The case contracts freedom of expression by ruling that a title or a subtitle alone can constitute an act of defamation without the article having to be read as a whole, thereby limiting the right to inform and criticize.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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