Short analysis of judgment of ECtHR on freedom of expression of editor of newspaper publishing article of senator, with reference to scope and effect of parliamentary privilege

Voorhoof, Dirk

English

Ghent University Academic Bibliography

IRIS 2013-10/1European Court of Human Rights: Belpietro v. ItalyThe European Court of Human Rights has delivered a new judgment against Italy for interfering with the freedomof expression and public statements related to the “war” between judges, prosecutors and the police in thecontext of combating the Mafia (see also Perna v. Italy (GC), see IRIS 2003-8/2). The judgment reflects a tensionbetween the freedom of parliamentary speech on the one hand, and the restrictions and obligations on the mediareproducing or publishing statements by politicians covered by their parliamentary immunity on the other hand(see also Cordova no.1 and no.2 v. Italy, see IRIS 2003-7/2).The applicant in this case is Maurizio Belpietro, who at the relevant time was editor of the national daily newspaperIl Giornale. In court in Strasbourg he complained about his conviction for defamation after publishing an articleby an Italian Senator, R.I. The article by the Senator was a robust opinion piece analysing the lack of resultsin combating the Mafia in Palermo. The Senator more particularly criticised the Italian judiciary and especiallyaccused some members of the public prosecutors’ office in Palermo of using political strategies in their fightagainst the Mafia. Two prosecutors, Guido Lo Forte and Giancarlo Gaselli considered some of the allegations inthe Senator’s article as damaging to their professional and personal reputations. They lodged a complaint fordefamation against Senator R.I. and Belpietro. Regarding the liability of the editor of Il Giornale, the prosecutorsrelied on Article 57 of the Criminal Code, making the editor or assistant editor of a newspaper responsible for lackof control when publishing defamatory statements without a sufficient factual basis.Separate proceedings were brought against Senator R.I. which ended in 2007 with a finding that there was no caseto answer, on the grounds that the Senator had expressed his views in his capacity as a member of the Senate,and was thus shielded by his parliamentary immunity based on Article 68§1 of the Italian Constitution. The Senateaccepted that the statements published by Senator R.I. were related to the exercise of his parliamentary functions.Belpietro however was sentenced to a suspended term of four months’ imprisonment and he was ordered to paysubstantial sums to each of the civil parties, adding to a total amount of EUR 110,000. The Court of Appeal of Milanconsidered some of the allegations against the members of the judiciary as defamatory of Lo Forte and Caselli.Belpietro made an application to the Strasbourg Court, alleging that his conviction for defamation had amountedto a violation of his freedom of expression guaranteed by Article 10 of the Convention. After reiterating extensivelythe general principles of its relevant case law on the issue, including the balance that has to be found between theprosecutors’ right to his reputation based on Article 8 and the newspaper editor’s right to freedom of expressionbased on Article 10, the European Court is of the opinion that the Italian authorities did not breach Article 10in finding Belpietro liable for publishing the defamatory article of Senator R.I. Although the Court recognisesthat the article concerned an issue of importance to society that the public had the right to be informed about,it emphasises that some of the allegations against Lo Forte and Caselli were very serious, without sufficientobjective basis. Furthermore, the Court refers to the obligation of an editor of a newspaper to control what ispublished, in order to prevent the publication of defamatory articles in particular. This duty does not disappearwhen it concerns an article written by a member of parliament, as otherwise, according to the Court, this wouldamount to an absolute freedom of the press to publish any statement of members of parliament in the exerciseof their parliamentary mandate, regardless of its defamatory or insulting character. The Court also refers to thefact that Senator R.I. had already been convicted in the past for defamation of public officials and to the fact thatthe newspaper had given a prominent place to the Senator’s article in the newspaper. However, as the Courtconsiders the sanction of imprisonment and the high award of damages as disproportionate to the aim pursued, itcomes to the conclusion that solely for that reason the interference by the Italian authorities amounted to a breachof Article 10 of the Convention. The Court especially draws attention to the fact that a sentence of imprisonment(even if suspended) can have a significant chilling effect and that the conviction was essentially because of nothaving executed sufficient control before publishing a defamatory article. Therefore there were no exceptionalcircumstances justifying such a severe sanction. A unanimous Court concludes that Italy has violated Article 10of the Convention, awarding Belpietro just satisfaction in terms of EUR 10,000 non-pecuniary damage and EUR5,000 for costs and expenses.• Arrêt de la Cour européenne des droits de l’homme (deuxième section), Affaire Belpietro c. Italie, requête n◦ 43612/10 du 24 septembre 2013(Judgment by the European Court of Human Rights (Second Section), case of Belpietro v. Italy, Appl. No. 43612/10 of 24 September 2013)http://merlin.obs.coe.int/redirect.php?id=16712FRIRIS 1Dirk VoorhoofGhent University (Belgium) & Copenhagen University (Denmark) & Member of the Flemish Regulator for theMediaThe objective of IRIS is to publish information on legal and law-related policy developments that are relevant to theEuropean audiovisual sector. Despite our efforts to ensure the accuracy of the content, the ultimate responsibilityfor the truthfulness of the facts on which we report is with the authors of the articles. Any opinions expressedin the articles are personal and should in no way be interpreted as representing the views of any organisationsrepresented in its editorial board.© European Audiovisual Observatory, Strasbourg (France)IRIS 2

European Court of Human Rights: Case of Belpietro v. Italy

https://biblio.ugent.be/publication/4188972/file/6805729

European Court of Human Rights: Case of Belpietro v. Italy

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