Judicial reporting: guidelines of the Milan Court.

With the judgment of June 16th, 2015, No. 7466, is ended the proceedings initiated before the Court of Milan by Roberto Formigoni who, in addition to being the wholly unsuccessful party, was sentenced to pay damages ex art. 96 of the Italian Civil Procedure Code. In this judgment the Court takes stock of the rules to be respected in the field of judicial reporting and draws a real guidelines to be followed in the assessment of the criteria that should be followed in this field.

The dispute concerns the episode of the program “Report”, entitled “The Pope King”, aired on Rai Tre in November 4th, 2012, during which the author and presenter of the program, Milena Jole Gabanelli, and a journalist of the editorial, Alberto Nerazzini, respondents in the proceedings togheter with Rai – Radiotelevisione Italiana S.p.A., in its quality of concessionary of the public broadcasting service, talked predominantly about the actor, at that time resigning president of the Lombardy Region.

Formigoni complained about the defamatory content of some passages of the episode and, upon verification that the offense of defamation under art. 57 of the Italian Criminal Code was committed, he called for the assessment and declaration of civil liability of the defendants under articles 2043, 2049, 2050 of the Italian Civil Code and art. 12 of Law No. 47/1948. So, he asked for an order to pay damages against defendants and for the publication of the judgment by insertion to extract during the program “Report” or other equivalent.

Instead he got an order to pay damages for vexatious litigation since, according to the Judge Mrs. Flamini, he has initiated legal proceedings with clear negligence (because of the manifestly unfounded claim, of truth of the facts of the criticism made in the TV show and of the objective public interest) and in total lack of the right claimed; furthermore since he has caused the lengthening of the time in the treatment of processes (because of the proposition of a just instrumental cause) and a huge damages to the defendants (such as the need for a defense in a civil action, the delay in establishing the truth and the consequences on the uncertainty of the solution).

Anyway, the most interesting profile of this judgment is the reconstruction of the criteria developed by the jurisprudence of legitimacy to evaluate the existence of the offense under art. 595 of the Italian Criminal Code. Assuming that the European Convention of Human Rights enshrines the freedom of thought as one of the most important rights of the individual, the Court points out the well-established principle that the freedom of thought “is not just about information and opinions neutral or harmless, but also those that may negatively affect”; according to the Court, “to support a different view it would mean to say that in our legal system is planned and protected the right to freely express their thoughts only and exclusively if this consists of approvals and not in criticism”.

Rather than in terms of law, this reasoning is posed in terms of common sense and leads to solve the balance of interests between the protection of honor and reputation of others and the freedom of thought in favor of the latter, provided that the principles of relevance (existence of an interest to the facts narrated by the public), the principles of continence (accuracy with which the facts are exposed with respect of the minimum form requirements) and the principle of objective truth (correspondence between the events and the ones narrated) are respected as well as in the present case.