Case Summary and Outcome

The Supreme Court of Italy upheld the right to inform as a defense in circumstances where reputational damage is due to verifiably truthful information, the information is in the public interest, and the writing is impartial and not inflammatory. The decision overturned the rulings of the Court of First Instance and of the Court of Appeals which found the reporting to misleading. The case concerned an article written by journalist Claudia Fusani, and published by the newspaper l’Unità, which reported that Maria Mangano was under investigation for alleged connections with an organized crime group in Southern Italy involved in human trafficking. The Supreme Court found that the article was sufficiently truthful, even if Mangano’s role in the crimes was marginal, and hence the newspaper and the journalist had lawfully exercised their right to inform.

Facts

The newspaper l’Unità and its head editor, Concita Di Gregorio, traditionally leaning left, have been repeatedly the object of strategic lawsuits, always aiming at pecuniary compensation worth millions of euros. From 2011 to 2018, Di Gregorio faced fifty three judicial proceedings for defamation. These lawsuits have been initiated by right wing politicians as well as media and communication companies (e.g., MEDIASET, Silvio Berlusconi’s media and communication company, and the second biggest television broadcaster after Radiotelevisione Italiana (RAI)).

Due to the bankruptcy of the publisher of the newspaper l’Unità, the legal expenses and the compensation damages fell entirely on Concita Di Gregorio who has publicly declared, via Twitter, that she and her family had to go through severe financial struggles, including the foreclosure of her home, due to the lawsuit directed at “silencing her”.

Di Gregorio received legal support and representation from the association Ossigeno per l’informazione, in collaboration with the Media Legal Defence Initiative (MLDI). Ossigeno and MLDI have also taken care of some of her legal expenses.

On April 27, 2010, the newspaper l’Unità published an article written by the journalist Claudia Fusani, which reported that Maria Mangano had been subjected to a decree for precautionary detention by the Judge for preliminary investigations of the municipality of Palmi. Maria Mangano was under investigation due to her alleged involvement in “modern slavery” consisting in the organized exploitation of clandestine labour. Mangano, who was in charge of the final allocation of the workers to the place of work, had been thus accused with others of being involved in organized crime. With the aim to illustrate the scope and pervasiveness of the phenomenon, the article also highlighted that Mangano had no criminal record.

Maria Mangano brought an action for defamation against both the journalist and the head editor of the newspaper, Concita Di Gregorio. Both the Court of First Instance and the Court of Appeals of Catania upheld the action and found that the journalist had committed defamation pursuant to Article 595 of the Italian Criminal Code. Both courts did not accept the defense put forward by the journalist according to which she had lawfully exercised her right to inform. Di Gregorio was instead found guilty of omitting to exercise the control necessary to prevent the commission of offences through the newspaper of which she was the head editor, pursuant to Article 597 of the Italian Criminal Code. In particular, she was found guilty of allowing the publication of a photograph of Maria Mangano, captioned “schiavista per bene” (“the good slaver”). The Judges considered the content of the article to be clearly defamatory, in light of the case law which holds that it is punishable as defamation the publication of photos of persons somehow involved in socially reprehensible phenomena when such publication connects the general phenomenon to a specific individual.

On June 30, 2015, Concita Di Gregorio and Claudia Fusani contested the decision of the Court of Appeals of Catania before the Supreme Court invoking that the First Instance and Appeals courts had not considered their lawfully exercised right to inform and that the article merely reproduced the content of the decree.

Decision Overview

On January 23, 2017, the Supreme Court found the two appeals to be legally founded. First, the Court affirmed that the right to inform is a justifiable defense in circumstances where reputational damage is due to verifiably truthful information, the information is in the public interest, and the writing is impartial and not inflammatory.

Secondly, the Court recalled its case law with regard to the limits of the right to inform wherever the information concerns preliminary investigations. In that case, in light of the “fluidity and ontological uncertainty” of the investigations, journalists must refrain from the use of excessively emphatic language and, in particular, shall not imply that the person accused is guilty, in accordance with the constitutional principle of presumption of innocence. Further, when formulating hypotheses regarding the development of the investigations, journalists involved in judicial reporting shall verify the truthfulness of the piece of information shared and shall demonstrate that it is relevant for the general public.

The Court ruled that the Court of Appeals erred in considering the news shared to be misleading and not truthful. The reasoning of the Court of Appeals was the following: the information was misleading because the journalist had wrongly highlighted the role of Maria Mangano (a “regular person”), while her role was, in fact, only marginal in the whole system of organized crime. This argument was rejected by the Supreme Court, which instead observed that the truthfulness of the facts (i.e., the investigation and existence of a precautionary measure against Maria Mangano) is not altered by the stylistic choice of the journalist to highlight the involvement of “regular people”.

In light of the above, the Supreme Court concluded that it could not be lawfully argued that the choice made by the journalist in delivering the news gave origin to fake news and that they had, thus, lawfully exercised their right to inform.