As Trump renews calls to change American libel laws, Italy offers a cautionary tale
Italy’s press laws include many of the libel provisions that Donald Trump called for during his candidacy and now as president — provisions that have resulted in rampant press censorship and judicial over-reach
After promising during his campaign to “open up” U.S. libel law if elected president, Donald Trump has raised the issue again in a tweet directed at the New York Times.
“The failing @nytimes has disgraced the media world. Gotten me wrong for two solid years. Change libel laws?” he wrote Thursday, linking a New York Post column about the Times’ coverage.
Last year, Trump raised concerns among free speech advocates when he announced that as president he would change the law so that newspapers could be “sued like they’ve never been sued before” for publishing “negative and horrible” articles.
At the time scholars were quick to point out that First Amendment jurisprudence would not leave much room for Trump to make good on these promises. But with an open Supreme Court seat and a volatile executive branch, it’s worth considering what these changes would look like if they did in fact become reality.
One country that offers a cautionary example is Italy, where I spent at year at the University of Bologna researching Italian and European libel law. Like the U.S., Italy is a western liberal democracy with a constitution that guarantees the right to freedom of expression.
But Italy’s press laws include many of the libel provisions that Trump advocated for as a candidate and now as president. These provisions have resulted in rampant press censorship and judicial over-reach, making Italy one of the worst developed nations in the world in terms of press freedom.
Libel law in Italy versus the U.S.
Article 21 of the Italian Constitution guarantees freedom of expression and says, “The press may not be subject to authorization or censorship.” Freedom of expression is the European legal equivalent to the American concept of freedom of speech, but in practice freedom of expression tends to be more limited because European courts must balance the right against competing interests such as privacy.
In the U.S., libel and defamation are defined as false speech that harms a person’s reputation (defamation is spoken, libel is written). In most states defamation is only a civil offense, but in Italy it is both civil and criminal.
The Italian penal code defines defamation more broadly: “offending the reputation of another” while communicating with someone other than the defamed party (article 595).
The impact of this difference is that in Italian law, truth is only a defense under certain circumstances.
Italian courts must consider the work’s truth, social utility and “restraint,” meaning the information must be expressed in a civilized way that does not “violate the minimum dignity to which any human being is entitled.” For expression of opinions and value judgments, which are neither objectively true nor false, the criticism cannot go so far as to “publicly humiliate” the subject.
Moreover, in Italy defamation committed “by medium of the press” is an enhanced offense — and therefore subject to higher penalties — because the press can do greater harm to an injured party’s reputation. In the U.S., the press generally does not have any special privileges or responsibilities (article 596-bis).
These differences in Italian libel law look a lot like the provisions Trump promised as a candidate and referenced again with his tweet last week.
“I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money,” he said in February at a rally in Forth Worth, Texas, in reference to papers such as the New York Times and Washington Post.
The U.S. Supreme Court’s case law already protects subjects from “purposely false” articles. Under New York Times Co. v. Sullivan, newspapers and other media are liable for defamation if a reporter acts with “knowledge that [the information] was false or with reckless disregard of whether it was false or not.”
This means that Trump’s real goals mirror the restrictive speech policies found in Italy: higher libel penalties for newspapers, “restrained” criticism even when the underlying facts are true, and opinions that are not expresse in a way that will humiliate the subject.
Impact of Italy’s libel laws
In today’s toxic media lanscape, a court-ordered return to civility might sound tempting. But I found that in Italy the laws limiting the permissible bounds of criticism have not resulted in a more polite, productive discourse. Instead, Italy’s defamation laws have caused vast judicial over-reach that has amounted to press censorship, attorneys and activists said.
For example, journalists are often prosecuted or sued in response to fairly routine investigative techniques, according to raw data provided by Ossigeno per L’Informazione (Oxygen for Information), a group affiliated with the state’s press association that tracks legal and other threats against journalists in Italy.
Lawsuits are brought for “asking leading questions,” “raising questions” of impropriety, or “hinting at ties” with organized crime, the group has found, while columnists have been sued for using hyperbolic language that was clearly intended as a rhetorical device.
Ossigeno has counted hundreds of frivolous lawsuits brought against journalists since 2011. In these cases the person who was allegedly defamed did not request a retraction or correction before filing a complaint, suggesting that the goal was simply to silence and harass the journalist instead of establishing and disseminating the truth.
The lawsuits have helped make Italy one of the worst developed nations in the world in terms of press freedom, according to international watchdog groups such as Reporters With Borders. In 2015 the nonprofit blasted Italy’s high rates of frivolous lawsuits.
“Elected public officials file most of these lawsuits, which constitute a form of censorship,” it said in a statement.
This means frivolous lawsuits enabled by overly expansive defamation statutes are harmful to both the journalists under attack and the public that depends on the free flow of information to make informed decisions about everyday life.
Around the world, overly restrictive defamation laws also consolidate power by allowing misdeeds to go “unchecked and unpunished,” the International Press Institute has found. This keeps perpetrators in positions of authority.
Americans should take Trump’s libel threats seriously and fight to preserve a legal system that allows journalists to be dogged without fear of reprisal. When journalists are sued — and thereby silenced — just for doing their jobs, we all lose.
Just ask the Italians.
