The on-going case involving Italian journalists Davide Vecchi and Augusto Mattioli poses fundamental questions for investigative journalism in Italy. In particular, the case highlights issues concerning the right of journalists not to disclose their sources, as well as the balance that needs to be struck between the right to privacy and freedom of expression.

In Italy, Article 200 of the Italian Code of Criminal Procedure protects the right to “professional secrecy” and has been interpreted as also protecting a journalist’s right to protect his or her sources. Nevertheless, the recent prosecution of a journalist, Davide Vecchi, and the involvement of his colleague, Augusto Mattioli, as a witness in his trial have re-opened a debate on this provision’s effectiveness at protecting journalistic sources in the modern era.

Since 2013, Mr. Vecchi had been publishing investigative articles in Il Fatto Quotidiano, a national newspaper, that took a critical look at a bankruptcy scandal at the Italian bank “Monte dei Paschi di Siena” (MPS). Among other things, he published some private email correspondence between two senior employees of the bank. Two years later, he was summoned before the Criminal Court of Siena on charges of unlawful data processing (Article 167 of the Italian Privacy Code) and disclosure of confidential documents (Article 93 of the Copyright Law No. 633/1941) for publishing these emails. Charges that carry custodial sanctions upon conviction.

The relevant emails were between the bank’s CEO, Fabrizio Viola, and the now-deceased bank manager David Rossi. Following the death of Mr. Rossi, an investigation had been commenced to examine the circumstances of his death. The emails published in Mr. Vecchi’s article included sensitive information about Mr. Rossi that were relevant to this investigation. In particular, Mr. Rossi wrote that he was well informed about MPS’s financial troubles and that he was ready to collaborate with the judicial inquiry into its bankruptcy. He also wrote that he would have committed suicide had the bank not supported him. Before publishing these emails, Mr. Vecchi informed Mr. Viola – the individual to whom the emails were originally addressed – about his intention to publish the emails in the press. Mr. Viola did not oppose or object, and his viewpoint was reported in the newspaper article. Even though no complaint was raised by Mr. Viola about the publication of the emails, Mr. Vecchi was prosecuted by a direct motion of the Criminal Court of Siena.

During the trial, Mr. Vecchi was accused of having published private correspondence covered by judicial secrecy since the correspondence was allegedly still part of the investigation files regarding Mr. Rossi’s death. The emails had been released by the judicial authority to Mr. Rossi’s family two months before Mr. Vecchi’s article in Il Fatto Quotidiano. However, following an appeal from Mr. Rossi’s widow, the investigation had been re-opened and they became part of the judicial file again.

On the third day of Mr. Vecchi’s trial, the hearing was held behind closed doors and the media were forbidden from reporting from the courtroom. A journalist who also wrote frequently about the MPS bankruptcy, Mr. Mattioli, was asked to testify and the public prosecutor put pressure on him to reveal the name of his source. He refused, relying on his right to “professional secrecy” and to the confidentiality of his sources. The judge informed him that he was not entitled to enjoy such a right because he was not a “professional journalist”. Mr. Mattioli was deemed not to be a “professional journalist” because he was not enrolled as a “professional journalist” with the Italian Order of Journalists. The right to “professional secrecy” under Article 200 of the Italian Code of Criminal Procedure was only open to “professionals”. After being told he could not rely on the provision, Mr. Mattioli revealed his source.

Comments

This case raises questions about whether individuals who apply and adhere to professional codes of conduct, such as journalists protecting the confidentiality of their sources, should be forced to breach these codes because of a narrow interpretation of statutory law. In this case, the Criminal Court had been confronted with the possibility of interpreting a provision that protected journalists’ rights in such a way that would also protect other non-professional actors whose activities are also journalistic in nature.

It is worth highlighting that Law No. 69 of 1963, regulating the journalistic profession in Italy, distinguishes between professional and non-professional journalists. Even if most of the time they substantially conduct the same work. This distinction has an impact on the rights and duties accorded to professional and non-professional journalists, including on the right to professional secrecy. However, the same 1963 Law states that journalists – with no distinction between professional and non-professional journalists – have to maintain the confidentiality of their sources in order to respect professional ethics and adhere to codes of practice (Article No. 2). The effectiveness of this journalistic duty has been seriously compromised by the approach adopted in Mr. Vecchi’s trial.

The Italian Order of Journalists expressed its concern for the Criminal Court of Siena’s approach, quoting a recent judgment of the Appeal Court of Caltanissetta (February 17, 2017). In this case, the Appeal Court acquitted two non-professional journalists – accused of abetting their sources – on the basis that they had a right to protect their sources. The Appeal Court stated that “there is no qualitative difference between the services rendered by a professional journalist and those of a non-professional one”. The Italian Order of Journalists noted that this approach was consistent with the judgment of the European Court of Human Rigths (ECtHR) in Goodwin v. UK, where the Strasbourg Court stated that journalists enjoy a right to protection of their sources without limiting enjoyment of this right to particular categories of journalist. According to the Strasbourg Court, this right is not just a privilege but it is also an essential guarantee for press freedom and for the public’s right to receive information.

The United Nations Human Rights Committee has also warned against a narrow definition of “journalist”, by observing that “journalism is a function shared by a wide range of actors, including professional full-time reporters and analysts, as well as bloggers and others who engage in forms of self-publication in print, on the internet or elsewhere”.

Unfortunately, Mr. Vecchi’s trial follows a series of events that have seriously threatened Italian journalists’ right to protect their sources. In January 2016, the Italian authorities seized some material belonging to the La7 TV channel in order to identify an anonymous policeman who appeared in a report on the Piazzapulita show. This program had reported negatively on the inadequate provision of police equipment. Similarly, a few days later, some material was seized from RAI (Radio Televisione Italiana) following their coverage of the same story. On both these occasions, the seizure orders were not addressed to the relevant journalists, who could have relied on their right to “professional secrecy”. Instead, the material was asked of their editors (i.e. La7 and RAI), thus bypassing the protections available under Article 200 of the Italian Code of Criminal Procedure.

Turning to the prosecution of Mr. Vecchi itself, the case raises serious questions about the balance that needs to be struck between privacy and the right to freedom of expression. This has been an issue that the Strassbourg Court has looked at in some detail. In the Strasbourg Court’s view, freedom of expression and the right to privacy deserve equal respect. However, as the former Strasbourg judge Robert Spano underlined during the 2017 conference of the European Centre for Press and Media Freedom (ECPMF), privacy laws are sometimes abused in order to silence critical information that should be disseminated in the public interest. For this reason, national courts should follow the ECtHR’s criteria when balancing between privacy and freedom of expression. These criteria require consideration of: (i) whether the information contributes to a debate of general interest, (ii) how well-known the person or the subject of the report is, (iii) the person’s prior conduct, (iv) the method of obtaining the information and its veracity, (v) the content, form and repercussion of such information, and (vi) the proportionality of the penalty imposed.

It is hoped that the Criminal Court of Siena will consider these factors during its upcoming hearings. The fourth hearing of Vecchi’s trial was hold on May 10, 2017. Mr. Vecchi is defended by lawyers Caterina Malavenda and Luigi De Mossi.