The so-called “Iuventa case” (aka “Trapani case”) provides insights into the conventional frameworks that protect journalistic sources in Italy.

In March 2021, after a nearly five-year-long investigation, the Italian Prosecutor of Trapani charged people who had worked as crew members on three NGO rescue ships of having allegedly collaborated with Libyan smugglers between September 2016 and October 2017[1].

The investigation became known to the public on 2 August 2017, when prosecutors ordered the seizure of the Iuventa ship.

In April 2021, the Italian newspaper Domani revealed that during the investigation, several journalists had been wiretapped.

One of the most serious cases appears to be that of Nancy Porsia, a freelance journalist with an expertise in Libyan affairs. Back in 2017, Porsia made an investigation into Al Bija, a commander of the Libyan coast guard involved in a lucrative human trafficking business in Zawiya.[2] According to Domani, within the Iuventa investigation her phone was tapped for several days – investigators collected personal details and the names of her sources, while also tracking her movements through her mobile phone’s geo-location. According to the journalistic investigation, also journalist Nello Scavo was intercepted while talking to one of his sources about how to receive a video of violence suffered by migrants in Libya.

The news sparked a major scandal, given the serious threat that this interference of investigative power poses for the freedom of the press.

The actual Prosecutor – who only took office in 2019 – stated that Porsia was wiretapped only for a few months in the second half of 2017, while she was reporting from one of the ships under investigation. He also added that in the summary report of the entire investigation there is no trace of the transcripts of journalists’ conversations.

The Italian Minister of Justice, Marta Cartabia, ordered an investigation on the case. During a recent question time, the Minister claimed nothing illegitimate was found, since Italian law does not require the intercepted person to be directly investigated. In any case, Porsia’s conversations were deemed irrelevant and not of use.[3]

Italian Regulation on the Protection of Journalistic Sources

The general regulation of wiretapping for judicial purposes is provided for in Book III, Title III, Chapter IV of the Italian Code of Criminal Procedure (CCP). Article 266 CPP provides that telephone conversations may be wiretapped only in criminal proceedings related to specific crimes. According to Article 267 CPP, the Prosecutor must request the measure to the Preliminary Investigation Judge, who authorizes it if there is a serious suspicion that an offence has been committed and the measure is absolutely necessary to continue the investigation. There is no need to have evidence against a specific subject to intercept him. Thus, even subjects who are not under investigation can be wiretapped.

Limitations to the use of wiretaps concern specific subjects. For example, Art. 103 CCP provides for an express prohibition of wiretapping conversations between lawyers and their clients, while Art. 68 of the Italian Constitution provides that the tapping of deputies requires a specific authorization by the Parliament. However, no express limitation is provided with regard to the wiretapping of journalists. Art. 271 CPP, which sanctions the use of unlawfully made recordings, does not refer to those against journalists.

Does this mean that wiretapping a journalist is always a legitimate act? The answer is not that simple if the journalist is recorded – as seems to have happened in this case – while talking to a confidential source.

The protection of sources is provided for by Art. 200 CPP, which allows the professional journalist who is testifying to withhold the name of the person from whom she or he has obtained the information. This privilege of confidentiality includes any information that may lead to the identification of the source. Nevertheless, if the information is necessary to prove the crime, and its truthfulness can only be ascertained through the identification of the source, the judge can order the information’s discovery and the journalist can no longer oppose the secrecy.

Likewise, Art. 256 CPP provides that journalists may invoke professional secrecy if judicial authorities request the delivery of documents, information or computer programs. However, such opposition can be overcome if considered unfounded by the judge, who can order the seizure.

According to the Supreme Court, it is essential to assess with accuracy the proportionality between the content of the measure and the investigative needs. A disproportionate interference may be considered a substantial infringement of the discipline provided by Articles 200 and 256 CPP. For example, the indiscriminate seizure of telephones, computers or digital files from a journalist, his partner, or his ex-wife, in order to disclose a journalist’s source for the writing of a journalistic investigation, has been considered illegitimate (see Italian Criminal Supreme Court 9989/2018)

That said, the national framework should also be read and integrated in light of the case law of the European Court of Human Rights (ECtHR), which interprets the European Convention on Human Rights (ECHR), and provides a mechanism for assessing the lawfulness of internal provisions.

ECtHR’s Case Law

The ECtHR has repeatedly stated that the protection of journalistic sources is one of the cornerstones of freedom of the press. Without such protection, sources may be deterred from assisting journalists in informing the public about matters of public interest.

One of the leading cases is Goodwin v. the United Kingdom (1996), which concerned a disclosure order imposed on a journalist, requiring him to reveal the identity of his source with regard to an investigation on a company’s confidential plan. According to the Court, the order was disproportionate and violated Art. 10 (freedom of expression) of the ECHR, given the absence of a reasonable relationship of proportionality between the legitimate aim pursued by the disclosure order and the means deployed to achieve it. In particular, the Court stated that without proper protection of journalistic sources, “the vital public-watchdog role of the press may be undermined, and the ability of the press to provide accurate and reliable information be adversely affected”. According to the Court, based on precedent set in the case of Tillack v. Belgium (2007), the confidentiality of sources must be protected both from direct interference – such as in cases of interrogation or wiretapping – and indirect interference, such as the seizure of material and documentation in journalist’s possession.

The principle was later confirmed in other judgments such as Voskuil v. the Netherlands (2007), which concerned the case of a journalist who was detained for more than two weeks for not having disclosed his source for two articles he had written on a criminal investigation on arms trafficking. The Court found a violation of the ECHR, stating that the Dutch Government’s interest in knowing the identity of the applicant’s source was not sufficient to override the applicant’s interest in concealing it.

Indeed, the secrecy of journalistic sources can only be restricted if an overriding interest in the investigation of serious crimes is proven, as stated, for example, in Nordisk Film & TV A/S v. Denmark (2005). The case concerned an order to disclose research material obtained by a journalist who went undercover and became involved in a pedophilic association. The Court here found that the order had been a proportionate interference with the journalist’s freedom of expression and was justifiable for the prevention of crime. However, it is not sufficient to merely invoke a generic interest in support of the interference, since the burden of proving that the interference was necessary and proportionate lies on the investigating authority (see Jecker v. Switzerland, 2020).

The issue was recently addressed by Sedletska c. Ukraine (2021), where a journalist’s mobile communications data – including the location of the applicant at the time of each call – had been accessed by the investigative authorities to investigate her involvement in the leak of confidential information concerning a criminal investigation. The applicant asked and obtained from the ECtHR an interim measure under Rule 39 of the Rules of the Court.

As a result, the Court requested the Ukrainian authorities to abstain from accessing any of the data received from the journalist’s mobile telephone operator. The ECtHR finally held that the data access authorization from the Court of Appeal “was not justified by an ‘overriding requirement in the public interest’ and, therefore, necessary in a democratic society” and constituted a violation of Article 10. The Court also recalled its case-law with regard to searches of journalists’ homes and workplaces and the seizure of journalistic materials.

Conclusion

At this point, it is possible to make some observations on the case mentioned at the beginning of the article. Given the few elements available, it can be said that the wiretapping of journalists has been formally lawful under Italian law, even if carried out while they were talking to their sources. As the Iuventa case illustrates, although the Italian Code of Criminal Procedure provides limits to investigative powers to protect the confidentiality of sources, there is no express prohibition under Italian law of wiretapping journalists.

It could possibly be argued that the act of investigating bypassed the safeguards provided by articles 200 and 256 CPP and failed to comply with the principle of proportionality identified by the jurisprudence developed on these standards. However, on a practical level, it should be noted that, since in this case the intercepted people are not under investigation, no internal remedy is provided to them to challenge the legitimacy of the investigations.

Therefore, the only way forward would be to claim a violation of the ECHR. In particular, Article 13, which protects the right to an effective remedy before national authorities for anyone who complains of a violation of the Convention (see Boyle and Rice v. United Kingdom, 1988), in relation to Article 10, which – as seen- is also violated when investigations entail a risk of identifying journalistic sources.

In conclusion, given the current legal framework in Italy, in such situations the only remedy available appears to be an application before the ECtHR. In particular, a key element to assess the proportionality and, so, the legitimacy of such measures would be to assess their motivation.

However, it should not be excluded that things could change in the future. In fact, the ECtHR has recently asked the Italian government to provide answers to a number of specific questions, concerning the clarity and precision of Italian law regarding wiretapping, the necessity and proportionality of the investigative activities carried out in the specific case and the existence of procedural remedies to challenge those activities in domestic law.

Footnotes

[1] See Article 12 par.3 a) and d) and par.3-bis of Legislative decree 286/1998.

[2] Later on, the Italian newspaper l’Avvenire revealed that Italian government was working closely with him in the context of a highly controversial agreement that Italy singed with Libyan authorities to manage migration flows. See https://www.avvenire.it/attualita/pagine/dalla-libia-al-mineo-negoziato-boss-libico.

[3] Nicola Canestrini, one of the lawyers representing the crew members of the NGO Iuventa, reports that in one of the last hearings the Preliminary Investigation Judge ordered the destruction of the wiretaps concerning the journalists.