Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Contracts Expression
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The Italian Supreme Court upheld a public prosecutor’s appeal against a first instance decision acquitting a journalist of criminal defamation in respect of an article reporting the death of one of the senior members of Cosa Nostra as having rid Sicily of “a great piece of shit”. The Court reasoned that general criticisms of an Italian criminal organization cannot justify the violation of an individual’s human dignity which is protected under Article 2 of the Italian Constitution. In other words, in balancing the conflicting interests at stake, namely freedom of expression and human dignity, the Court considered that human dignity prevailed.
Ms Rosa Pace, widow of Mr Mariano Agate, a senior member of Cosa Nostra sued journalist Rino Giacalone for defamation over an article published after the death her husband in 2013. In the report Giacalone recalled Agate’s criminal past and stated that his death had freed Sicily of “a great piece of shit”. The widow and her sons claimed that the statement violated the deceased’s right to human dignity.
The Court of Trapani acquitted the journalist finding that the right to criticize covered the defamatory statement and did not constitute a violation of human dignity. Indeed, the Court said, that the journalist used such an expression specifically to encourage readers to think about the value system of the Cosa Nostra’s value system.
The public prosecutor of the Court of Trapani appealed the decision directly to the Italian Supreme Court alleging that the court of Trapani had misapplied the criminal law.
The Italian Supreme Court upheld the appeal on the following basis.
Firstly, it said that the right to criticize extends to expression so long as it neither excessive nor unjustified in seeking to convey its message. Therefore, statements that are strong, controversial or hyperbolic will escape liability provided that they are proportionate and used to express a personal opinion. In particular, expression that is used to criticize should not consist of a gratuitous and unjustified attack on another’s reputation. According to both domestic law and the European Court of Human Rights, in balancing the fundamental rights of free speech and the protection of a person’s dignity, it is necessary to consider the purpose behind the statement, namely whether it had a sufficiently close connection to facts or was constituted a gratuitous personal attack.
The Court said that this assessment was linked to the purpose of the communication and to the specific context in which the expression is used but that it was also necessary to take into account its content. Justified criticisms need to respect a human dignity as provided by article 2 of the Italian Constitution: some expression is objectively offensive and, therefore, unacceptable in any context, except in cases in which such expression is justified in the context of a joke. Expressions which “dehumanize” the victim are objectively detrimental to reputation, such as those which compare humans to things, animals or concepts commonly considered repugnant, obscene, or disgusting like excrement.
The Supreme Court said that everyone had the the right to human dignity and that the general purpose pursued by the journalist could not justify the violation of a fundamental interest of the individual in question even if such individual was the author of brutal crimes.
Moreover, the Italian Supreme Court considered it irrelevant that the reference to excrement when describing Cosa Nostra had its genesis in a famous statement of a well-known Italian victim murdered by the Mafia, who had used it to emphasize the organization’s ability to undermine the basis of civil society. The Court said that this argument did not go to the issue in the case because in using the quote to refer to just one individual of the criminal organization the journalist changed its whole meaning. As a result, the statement violated the essence of human dignity. The Italian Supreme Court also pointed out that one of the aims of Italy’s legal system is to re-educate criminals as provided by article 27, paragraph 3 of the Italian Constitution, even those who belong to a bloody criminal organization,
For these reasons, the Court annulled the decision of the Court of Trapani and referred the case to the Court of Appeal of Palermo.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the Italian Supreme Court contracts freedom of expression because it imposes limits on the right to criticize in order to protect human dignity. However, the decision should be read in the context of the European Court of Human Rights’ jurisprudence on the protection of fundamental rights which is based on balancing conflicting interests on a case-by-case basis.
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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