Journalists and publishing companies
II. RELEVANT DOMESTIC LAW 25. Article 87 of the Constitution sets out the powers of the President of the Italian Republic. In particular, paragraph 11 provides: “The President may grant pardons and commute punishments.” 26. Article 174 of the Criminal Code provides: “The pardon or grace condones, in whole or in part, the penalty imposed, or commutes it into another penalty established by law. It does not extinguish the accessory penalties nor, unless the decree states otherwise, the other penal effects of the sentence”. 27. Article 57 of the Criminal Code, entitled “ Offences committed by means of the press”, provides: “Without prejudice to the liability of the author of the publication and unless complicity is involved, any editor-in-chief or deputy editor who fails to exercise, vis-à-vis the content of his periodical, the control required to prevent offences being committed by means of the publication shall be punished for negligence if an offence is committed, with the penalty for this offence reduced by a maximum of one-third. ” 28. Article 595 of the Criminal Code defines the offence of defamation. The relevant parts of that Article read as follows: “ (1) Anyone who ..., in communicating with more than one person, damages the reputation of another, shall be punished by one year ’ s imprisonment or by a fine of up to EUR 1,032. (2) Defamation which consists in imputing a specific fact shall be punishable by up to two years ’ imprisonment or by a fine of up to EUR 2,065. (3) Defamation which is disseminated by the press or any other form of publicity, or in a public document, shall be punishable by imprisonment of between six months and three years or by a fine of at least EUR 516. (4) In the event of defamation against a member of a political, administrative or judicial authority, or one of its representations ... the sentences shall be increased.” 29. Section 13 of Law no. 47 of 8 February 1948 (hereinafter “ the Press Act ”), published in Law Gazette no. 43 of 20 February 1948, as far as relevant, reads as follows: “ If the offence of defamation is committed through the press and consists in attributing a specific fact, the author shall be liable to imprisonment of [between] one and ... six years and a fine ...” 30. In their observations the Government pointed out that a defamation reform bill (Draft Bill no. 925) was currently under revision for a second reading before the Senate Standing Committee on Justice. Among other things, the draft proposes the removal of imprisonment as a sanction for defamation, and its replacement by a fine. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 34. The applicant argued that his conviction for defamation through the press ( diffamazione a mezzo stampa ) and for failure to exercise control over the content of the publication ( omesso controllo sul contenuto dell ’ articolo diffamatorio ) had breached Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Admissibility 35. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions ( a ) The applicant 36. The applicant challenged his conviction for defamation. He submitted that he had only been convicted because of the Public Prosecutor ’ s failure to conduct an appropriate investigation in order to find the writer of the anonymous article. In the applicant ’ s view, the conviction of the editor-in-chief of a newspaper had had the negative effect of impeding the publication of news in the public interest. The applicant further submitted that “ [on] the day the article was published [ he ] was absent and didn ’ t know anything about the article contested ”. 37. Turning to the proportionality between the offence committed and the sanction imposed, the applicant observed the following. 38. At the outset, he submitted that the domestic courts had not adopted a homogeneous approach with respect to the type of sanction to be imposed: in particular, the first-instance court had not found the detention “necessary”, finding the imposition of a financial sanction appropriate and sufficient; secondly, the applicant argued that the lack of subjective responsibility, the offence having been committed by another person, could not justify the “ cruelty ” of the sanction. 39. The applicant further submitted that the sanction imposed had seriously damaged his career. The proceedings instituted against him had led to him being suspended from his profession as a journalist for three months. Furthermore, he had been forced to resign from the position of editor-in-chief of another newspaper, Il Giornale, and, overall, his professional capacity had inevitably been affected. 40. The applicant also claimed he had suffered health problems as a result of his conviction. 41. Lastly, the applicant reiterated the reasons put forward by the President of the Italian Republic, who had taken the decision to commute his penalty into a fine (see paragraphs 21-23 above ). (b) The Government 42. The Government argued that the articles at issue were clearly defamatory since, in addition to reporting false information, they had been mainly intended to “ obscure and undermine the reputation of those involved in the facts of the case”. 43. The Government further argued that the right to freedom of expression and to impart information invoked by the applicant had violated the right to protection of one ’ s reputation in that the applicant had not only undermined G.C. ’ s reputation but first and foremost had violated the right to privacy of a thirteen-year old girl who “in a dramatic time in her adolescence had sought the [intervention of a] judge”, as well as of all those involved. 44. Turning to the applicant ’ s liability, the Government, after pointing out that as editor-in-chief he bore full responsibility for the content of the article published under the pseudonym, reiterated the reasons put forward by the domestic courts, in particular the Court of Cassation, in imposing the custodial sentence on the applicant (see paragraph 19 above). 45. In conclusion, the Government, relying on what the Court had previously stated in Fatullayev v. Azerbaijan, (no. 40984/07, § 95, 22 April 2010), affirmed that the applicant could not invoke the safeguards afforded by Article 10 to journalists since he had not acted in good faith and, even worse, had provided unreliable and false information. In the light of the foregoing observations, in the Government ’ s view, the imposition of detention had been proportionate. 2. The Court ’ s assessment (a) Whether there has been an interference 46. It is not in dispute between the parties that the applicant ’ s conviction constituted an interference with his right to freedom of expression under Article 10 § 1 of the Convention. 47. It should therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was “necessary in a democratic society” in order to achieve the relevant aim or aims (see Peruzzi v. Italy, no. 39294/09, § 42, 30 June 2015, and the authorities cited therein). (b) Whether the interference was justified: “prescribed by law” and “legitimate aim” 48. The parties likewise agree that the interference was prescribed by law, namely by Articles 57 and 595 of the Criminal Code and section 13 of the Press Act (see paragraphs 2 6 -2 8 above). 49. Turning to the legitimacy of the aim pursued, it is not for the Court to assess whether the applicant ’ s conviction pursued the legitimate aim of protecting the judiciary, as the Court can accept that the interference in any case pursued the legitimate aim of protecting the reputation and rights of others, namely the thirteen-year old girl and her parents as well as those of G.C. ( see Belpietro v. Italy, no. 43612/10, §§ 45, 24 September 2013 ). 50. The parties differed as to whether the interference in question had been “necessary in a democratic society” and proportionate to the sanction imposed. The Court must therefore determine whether this requirement, as set forth in the second paragraph of Article 10, was satisfied in the instant case. (c) “Necessary in a democratic society” ( i ) General principles 51. The general principles concerning the necessity of an interference with freedom of expression are summarised in the cases of Morice v. France [GC], no. 29369/10, § § 124-139, ECHR 2015 and Belpietro ( cited above, §§ 47-54 ). 52. In particular, the Court points out that the test of “necessity in a democratic society” requires it to determine whether the interference complained of corresponded to a “pressing social need”, whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient” and whether the sanction imposed was “proportionate to the legitimate aim pursued” (see Belpietro, cited above, §§ 49-50). (ii) Application of the above principles to the present case 53. In the instant case the national courts found that the content of the articles had led to misinformation of the public, having given false information despite the clarifications disseminated the day prior to their publication. In addition, in the courts ’ view, the applicant had seriously tarnished G.C. ’ s honour and his right to privacy, as well as that of all those involved. 54. The Court sees no reason to depart from the above findings. 55. In particular, it cannot consider arbitrary or manifestly erroneous the assessment carried out by the national authorities, according to which the articles published by the applicant had attributed behaviour to G.C. involving a misuse of his official powers. Moreover, the Court observes that the case involved a minor and also contained defamatory statements against the parents and the doctors. 56. In addition, the Court agrees with the Government that the applicant failed to observe the ethics of journalism by reporting information without first checking its veracity. 57. Furthermore, the Court points out, as it has previously held (see Belpietro, cited above, §§ 58-59), that the head of a newspaper cannot be exempted from his duty to exercise control over the articles published therein and bears responsibility for their content. 58. In the light of the foregoing considerations, and having regard to the margin of appreciation left to the Contracting States in such matters, the Court finds that the domestic authorities were entitled to consider it necessary to restrict the exercise of the applicant ’ s right to freedom of expression and that his conviction for defamation and omesso controllo accordingly met a “pressing social need”. What remains to be determined is whether the interference at issue was proportionate to the legitimate aim pursued, in view of the sanctions imposed. 59. Although sentencing is in principle a matter for the national courts, the Court considers the imposition of a custodial sentence for a media-related offence, albeit suspended, compatible with journalists ’ freedom of expression as guaranteed by Article 10 of the Convention can only be in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech or incitement to violence (see, Cumpănă and Mazăre v. Romania, [GC], no. 33348/96, § 115, ECHR 2004-XI ). In this connection, the Court notes the recent legislative initiatives by the Italian authorities aimed, in line with the recent rulings of the Court against Italy, at limiting the use of criminal sanctions for defamation, and introducing, as a notable positive step, the removal of imprisonment as a sanction for defamation (see paragraph 29). 60. In the present case, unlike in Belpietro and Ricci (Ricci v. Italy, no. 30210/06, §§ 59-61, 8 October 2013), the applicant, in addition to being ordered to pay compensation to the magistrate concerned, actually spent twenty-one days under house arrest before the intervention of the President of the Italian Republic (see paragraphs 21-24 above ). 61. In this connection, it may be relevant to note that in two similar cases (see Belpietro, cited above, §§ 61-63, and Ricci, cited above, §§ 59-61 ) the imposition of a custodial sentence (although suspended) led the Court to find a violation of Article 10. In particular, in Belpietro, the applicant, the then editor-in-chief of the newspaper Il Giornale, had been accused of defamation for omitting to exercise the necessary control over an article published by another person in the newspaper. On that occasion the Court held that a prison sentence could only be justified if there were exceptional circumstances, that not being the case since it concerned a lack of control in connection with defamation. 62. The Court considers that, in the circumstances of the instant case, there was no justification for the imposition of a prison sentence. Such a sanction, by its very nature, will inevitably have a chilling effect (see, mutatis mutandis, Kapsis and Danikas v. Greece, no. 52137/12, § 40, 19 January 2017). The fact that the applicant ’ s prison sentence was suspended does not alter that conclusion, considering that the individual commutation of a prison sentence into a fine is a measure subject to the discretionary power of the President of the Italian Republic. Furthermore, while such an act of clemency dispenses convicted persons from having to serve their sentence, it does not expunge their conviction ( see paragraph 26 above; see also Cumpănă and Mazăre v. Romania, cited above, § 116, and Marchenko v. Ukraine, no. 4063/04, § 52, 19 February 2009 ). 63. The foregoing considerations are sufficient to enable the Court to conclude that the criminal sanction imposed on the applicant was manifestly disproportionate in its nature and severity to the legitimate aim invoked. 64. The Court concludes that the domestic courts in the instant case went beyond what would have amounted to a “necessary” restriction on the applicant ’ s freedom of expression. The interference was thus not “necessary in a democratic society”. 65. Accordingly, there has been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 66. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 67. The applicant claimed EUR 100, 000 in respect of pecuniary and non-pecuniary damage. 68. The Government disputed this claim. They reiterated that there was “ no room ” for the applicant ’ s request since he had seriously infringed the fundamental rights of a minor, her parents and G.C. 69. The Court rejects the applicant ’ s claim for pecuniary damage as unsubstantiated since he has failed to produce any relevant information. On the other hand, having regard to the fact that the applicant must have suffered anguish and distress on account of the facts leading to the finding of a violation of Article 10 of the Convention, the Court awards him EUR 12, 000 in respect of non-pecuniary damage. B. Costs and expenses 70. The applicant also claimed EUR 14,591.20 for the costs and expenses incurred before the Court. 71. The Government did not comment on the applicant ’ s claim. 72. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5 ,000 for the proceedings before the Court. C. Default interest 73. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the sentence following the applicant’s conviction for defamation had been manifestly disproportionate. It accepted that the interference with his right to freedom of expression had been intended to protect the reputation and rights of the 13-year old girl and her parents as well as those of the guardianship judge, and also agreed with the national courts’ findings that the articles under the applicant’s control had given false information, despite the clarifications reported the day before. He had thus seriously tarnished the honour and privacy rights of all those involved. The Court found however that there had been no justification for imposing a prison sentence and such a sanction had gone beyond what would have amounted to a “necessary” restriction on the applicant’s freedom of expression.