GIANLUCA AMADORI Componente del Comitato Esecutivo del Consiglio nazionale dell'Ordine dei giornalisti
Media-Democracy Nexus in the European Space
17 October Roma
GIANLUCA AMADORI Member of the Executive Committee of the National Council of the Order of Journalists
European legislation can be of support in addressing the numerous problems relating to freedom of the press in Italy. The European Parliament recently voted on the Media Freedom Act, a provision that we believe is overall positive although some aspects should be strengthened. However, there is a risk that the final version that emerges from the Parliament-Commission-Council discussion may be worse. The first thought goes first of all to the use of spyware against journalists.
A similar argument applies to the proposed directive on SLAPPs: there are many good principles, but there is still too little operationalisation and the risk of weakening the provision.
In Italy the problem of defamation law is serious, but European regulations do not intervene in the criminal code, just as – from what appears – the regulatory intervention on civil SLAPPs (compensation for damages) seems limited to transnational cases.
We praise the affirmation of reference points and the invitation to States to act to protect journalists: the real question remains how to transform the invitations into binding rules. And we are not there yet on this front.
Another issue, not addressed by the provisions in question, should be put on the agenda of public discussion as soon as possible: the decent remuneration of journalists.
In Italy the exploitation of information professionals has reached shameful levels, in total silence: 5 Euros for an article, which can even become 2 if it is published on a website. How can we discuss freedom of information, the independence of journalists in the face of such a compensation?
Every norm to defend the right to fair compensation in the journalistic sector has been aborted due to the opposition of publishers: this is why a mobilisation is needed, which should involve all civil society.
Citizens' right to be informed is at stake.
Back to the European Media Freedom Act, I add some reflections.
TRANSPARENCY
Of note is Article 6 which imposes on media service providers the obligation to disclose "the name or names of the direct or indirect owner or owners with shareholdings that allow them to exercise influence on the strategic activities and decision-making process".
Article 24 introduces transparency systems that could considerably improve the current state advertising system in Italy.
The only data made public today by the authorities concern contributions for publishing, paid on the basis of defined rules and the preparation of specific rankings. Nothing is known, however, about the huge amounts relating to advertising or information campaigns, nor about the criteria on the basis of which the resources of public bodies and companies are used in a specific media service to finance such campaigns.
It is a shame that the EMFA sets the limit of one million inhabitants to trigger the reporting obligation on local administrations, leaving the others free to continue with a management devoid of transparency.
INTERCEPTIONS
Currently in Italy there is no prohibition on intercepting journalists, nor on searching them or confiscating their cell phones and diaries.
Article 4 of the EMFA is therefore an important innovation for the protection of journalistic work, with particular reference to the protection of journalistic sources, even if it allows the use of spyware in the case of investigations into extremely serious crimes.
For years there has been an ongoing debate in Italy on the use (or rather on the limitation of the use) of wiretaps in criminal investigations, but the question of guaranteeing freedom of the press has never been addressed. Italian politicians seem more interested in limiting the use of wiretaps to reduce the number of possible cases of corruption and similar crimes and above all to prevent the contents of the intercepted conversations from ending up in the newspapers, in particular those that could be inconvenient for some powerful person. The latest regulations wanted by the government also seem to head in this direction, while the discussion has resumed in Parliament to reform the law on defamation, exorbitantly increasing the financial penalties: from 10,000 to 50,000 Euros, in addition to compensation for damages.
PUBLIC SERVICE
The so-called "spoiling system" has been in use in Italy for years in public information companies. Managers and journalistic leaders are promptly changed as soon as a new government takes office, as if information were the heritage of those who manage power (with the need to place trusted people at the top, or worse, under the orders of politicians).
If the "spoiling system" can be valid for a ministry or for a state company, it certainly does not apply to the public service media, whose purpose is not to please the ruler of the moment, but to inform citizens in the most complete and autonomous way possible, in exercise of a constitutionally recognised right. Yet no one protests what has always happened, with every change of government, of every colour.
The guarantees introduced by Article 5 of the EMFA could help increase the independence of journalists working for the public service.
Other critical issues that must be highlighted in a debate on freedom of the press concern the growing obstacles placed in the way of carrying out journalistic activity by some recent national regulations.
ACCESS TO SOURCES AND RECORDS
In Italy it is increasingly difficult to have direct access.
Access is almost always mediated through press offices, press releases, and press conferences in which there is little opportunity to ask questions and documentation is rarely provided.
Journalists are hardly granted access to the offices of public bodies (ministries, municipalities, regions, police headquarters) except to access press conferences.
There is legislation on access to documents, which is very often disregarded: the refusal to provide data of public interest is motivated by improperly appealing to the privacy law, even when the requested data concern public bodies and subjects as well as topics of significant interest.
PRESUMPTION OF INNOCENCE AND RIGHT TO BE FORGOTTEN
Furthermore, concern is raised by the entry into force and improper application in Italy of two standards with which European directives have been transposed in an exorbitant manner.
The recent legislation on the presumption of innocence (Legislative Decree no. 188/2021) has introduced unjustified limitations and is applied in an unjustifiably rigid manner by many prosecutors' offices and police bodies, in contrast with the provisions of the European law on the presumption of innocence, and even more so than the constant jurisprudence of the ECtHR on freedom of the press.
Journalists do not contest the constitutional right to the presumption of innocence, but denounce the growing problems in accessing sources relating to judicial news (police operations, investigations, and more simply news events such as road accidents). Press releases are almost always so vague that they do not allow any type of verification of the news disseminated; the names are no longer provided, although European legislation does not prohibit it, as it simply requires not to indicate a person as guilty before sentencing, specifying the procedural phase.
Concern in the world of information is also aroused by the most recent legislation relating to the right to be forgotten (Law no. 134/2021, which entered into force on 10/19/2021).
The right to be forgotten, or the citizen's right not to see themselves exposed forever in the media, is regulated by Article 17 of the GDPR - General Data Protection Regulation (EU/2016/679), and has been part of the ethics of the profession for years (art. 3 consolidated text of the journalist's duties). The important principle of civility and protection of people's dignity is therefore a consolidated heritage for journalists who certainly do not question it, and indeed have been applying it for years, responding to the increasingly numerous requests presented by citizens.
The concerns involve the introduction of an unacceptable automatism to obtain the de-indexing (and even to prevent the indexing) of news concerning acquitted persons and subjects whose position has been archived at the conclusion of a judicial proceeding. The law provides that, upon request of the interested party, it is the court clerk (not the judge) who places an apostille at the bottom of the sentence on the basis of which the de-indexing can be obtained.
As for the preclusion of indexing, aimed at preventing the release of news that had never appeared until then, it has little to do with the right to be forgotten, which obviously concerns episodes of which there has been news, as what has remained unknown cannot be covered from oblivion.
The purpose of the law appears clear: to limit information as much as possible. To guarantee people's dignity, it would have been more correct to impose an obligation to update news, so as to offer citizens a correct and complete picture of judicial facts, whilst preserving the right to be forgotten for less important facts.
