Defamation / Reputation
Afanasyev v. Zlotnikov
In Progress Contracts Expression
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The Civil Court of Appeal of Milan upheld the decision of the Court of First Instance of Milan that had found a right-wing newspaper responsible for defaming a social cooperative. After the publication of an article alleging that organizations were enriched through the trafficking of people of color, one of the organizations approached the Court, seeking a declaration that the newspaper’s conduct was defamatory and damages. The Court held that the article created the false impression in its readers that the organizations were acting unlawfully and, as it harmed the organisation’s honor, was therefore defamatory and not a lawful exercise of the right to freedom of expression.
On August 31, 2017, the Italian right-wing newspaper Alfa published an article titled “Vile speculation. Lists of the pimps who get rich from the trafficking of black people. In 2016 cooperatives and Catholic associations billed billions”. The article discussed the 2015-2016 turnover of the cooperatives – non-profit organizations (NPOs) – in charge of welcoming applicants for international protection, in a table titled “THE BIG BUSINESS: 2015-2016 turnovers and profits of the cooperatives receiving migrants”. The article indirectly suggested and implied the unlawfulness of the activities carried out by the cooperatives in two ways. First, it pointed out that the only cooperative whose profits had not increased in 2016 was under strict judicial control in that it was managed by the judiciary of Rome. Second, it compared and associated the managing of those cooperatives to the high-profile public corruption Mafia Capitale case.
On December 1, 2017, the social cooperative Beta approached the Court of First Instance of Milan under article 702 bis of the Italian Civil Procedural Code and article 28 of the Legislative Decree No. 150/2011, asking the Court to declare Alfa’s conduct in publishing the article discriminatory. Beta submitted that the conduct may have also consisted in press-related defamation and subsequently demanded compensation for damages.
The Court of First Instance found the article to be defamatory and rejected the newspaper’s argument that its conduct was protected by the right to criticism and the right to inform as exonerating circumstances. Alfa appealed the decision, arguing that the Court of First Instance erred in excluding the application of the right to inform and the right to criticism. Alfa submitted that the Court had wrongfully limited the scope of application of the right to criticism of journalists and had erroneously characterized the free expression of the journalist’s thoughts and opinions on the management of public assets (here, the inappropriate attribution of funds to social cooperatives in charge of receiving migrants) as defamatory. The newspaper also appealed the award of non-pecuniary damages to Beta. Beta appealed the ruling as well, arguing that the Court – while correctly stating the defamatory character of the publication – had not declared Alfa’s conduct discriminatory.
The central issue for the Court’s determination was whether the article was defamatory or whether Alfa’s spreading of harmful news was an exercise of its right to criticism.
The Court noted that liability for press-related defamation originates in the damage to the inalienable rights to honor and reputation of another individual or entity which results from the spread of harmful news through the publication of a newspaper article. The spread of harmful news may be considered lawful when it is a legitimate exercise of the right to freedom of expression, in terms of article 21 of the Italian Constitution, in the form of the right to criticism or the right to inform. The Italian Supreme Court has stated, on several occasions, that the right to inform is legitimately exercised if three conditions are met: 1) the piece of information shared is true; 2) there is a public interest in the knowledge of the fact (so-called “relevance”); and 3) the facts are illustrated in a form which does not harm the honor of the person or entity involved. In respect of the right to criticism, the existence of an interest of the group of people to which the communication is addressed would be added to the conditions.
The Court applied these conditions to the present case. First, the Court held that the requirement regarding the truth of the facts – in this case the data concerning the turnover – had been met as Beta had not contested the 2015-2016 turnover data shared in the table. Second, the Court stated that the Court of First Instance had correctly found that the readers of the right-wing newspaper had an interest in knowing that State funds were devoted to the reception of applicants for international protection as right-wing politicians have criticized the distribution of these funds. Third, it found that the Court of First Instance had correctly held that the third requirement – that the facts are shared in a way that does not harm a person’s reputation – had not been satisfied. The Court observed that this requirement has two profiles: a formal one and a substantial one. The formal profile requires that the publication does not use denigratory expressions, while the substantial one requires that, when spreading information, the publication does not exceed the limits of what is strictly necessary for the public interest. In particular, the media must not convey information that may become excessively harmful to the person or entity involved. The Court noted that the Supreme Court has found the third condition not to be met when the expressions used in the media either become an unjustified aggression or – more importantly – result in the attribution of unlawful or morally reprehensible conduct.
Having considered – accordingly to a principle established by the Supreme Court – the offensiveness and truthfulness of the entire article, including the title, subtitles, overall display, metaphors used in the body of the text, the Court explained why that third condition – that the facts are conveyed in a form which does not harm the honor of the person or entity involved – was not satisfied. It held that Alfa had attributed to Beta the unlawful conduct of enrichment through trafficking people of color. By using expressions such as “speculation”, “trafficking” and “pimps”, Alfa had deliberately suggested the unlawfulness of Beta’s lawful activity, and had attempted to lead the general public to believe – falsely – that Beta was acting unlawfully. The Could observed that the accusation of enrichment to the detriment of the citizenry was particularly harmful to the reputation of Beta: as a non-profit organization its legal status prevents it from redistributing its profit which must be devoted in its entirety to the social purpose pursued. The Court rejected Alfa’s argument that the Court of First Instance had failed to consider that the right to criticism (as opposed to the right to inform) contains an element of subjectivity and does not require mere truthful narration of facts. The Court emphasized that the third condition still needed to be met.
The Court found that the article’s message was not merely critical of the political choice to allocate State funds to the cooperatives, but it was openly directed at creating hatred and disdain towards NPOs supporting migrants: the article misleadingly described those organizations as an organized means through which migrants are exploited to obtain a profit. The Court held that the use of derogatory expressions which led to the public to believe, incorrectly, that Beta was acting unlawfully by receiving applicants for international protection was not a lawful exercise of the constitutional right to freedom of expression. Accordingly, the Court upheld the decision of the Court of First Instance.
The Court dismissed Beta’s application for Alfa’s conduct to be declared discriminatory on the grounds that Beta had already obtained compensation for the damage suffered.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In finding in favor of Beta, the Court held that – despite the article’s facts being true – the implications created by the language used in the article offended the organization’s honor and was therefore defamatory and not protected by the right to freedom of expression.
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