Precautionary protection of the right to honour and reputation in light of the principle of inadmissibility of precautionary measures equivalent to seizure of the press under Article 21, paragraph 3, of the Italian Constitution

In the event of online press articles causing damage to honour and reputation, without prejudice to the prohibition of precautionary measures having equivalent effect to seizure of the press, the victim must be afforded effective protection of his/her right, in light of the principle of inviolable and effective judicial protection.

In such case, therefore, the preventive measure that, according to the Court of Milan, ensures a fair balance between the right to judicial protection (Articles 24 and 113 of the Italian Constitution) and the prohibition under Article 21, paragraph 3, of the Italian Constitution (as specified by judgment No. 23469/2016 of the Supreme Court en banc) is the precautionary request for an “update” of the information published including clarifications of the person concerned.

The case to which the Decision applies is about interim proceedings initiated by two lawyers against the editor of an online weekly newspaper to prevent dissemination and publication of certain information published therein, deemed defamatory by the persons concerned.

On the basis of the arguments put forward in judgment No. 23469/2016 of the Italian Supreme Court, the claim was declared inadmissible and challenged under Article 696 terdecies of the Italian Code of Civil Procedure before the Court’s panel of judges. The Court of Milan had a chance to explore from a different perspective the issue of admissibility and the relevant scope of precautionary protection of honour and reputation of people damaged by allegedly defamatory press articles.

The Decision concerning the complaint is based on the case law principle set out in the aforesaid judgment of the Civil Supreme Court en banc (coming after judgment No. 31022/2015 of the Criminal Supreme Court en banc), which reaffirmed the principle whereby the protection under Article 21, paragraph 3, of the Italian Constitution, applies also to (exclusively or not) online newspapers and is extended to all types of precautionary, interim or restraining orders with a scope equivalent to seizure, aimed at limiting and/or preventing the dissemination of press articles.

On the basis of said principle, the Court of Milan identified a measure capable of ensuring, urgently and without recourse to any measures equivalent to seizure, a form of protection for people damaged by press articles detrimental to their honour and reputation.

The Court’s panel of judges indeed argues that, in the absence of effective interim protection and taking into account the pervasive and disseminative nature of the online medium as well as its capability to cause potentially irreparable damage, the person concerned should defer the protection of his/her fundamental right to honour and reputation to a stage (i.e. the trial stage) when the harmful effects of an offence have already irreversibly taken place and consolidated.

Therefore, a conflict is identified between constitutional rights and principles, namely, the right to honour and reputation, on the one side, and the principle of freedom of the press (involving the prohibition under Article 21, paragraph 3, of the Italian Constitution), on the other side.

Such a conflict can be resolved, however, through the principle of effective judicial protection and the principle of proportionality among rights of equal constitutional rank in case of conflict, in order for the damaged party to be able to obtain an interim order for protection of his/her right to honour and reputation, without incurring breach of the prohibition under Article 21, paragraph 3, of the Italian Constitution as construed by the Supreme Court’s case law.

The attention of the Court is therefore focused on identifying the specific methods to implement protection. In such context, the Court suggests a remedy (with a narrower scope than the request to prevent dissemination of information) capable of resolving the conflict, in accordance with the principle of effective judicial protection, i.e. the request for urgent update of information including the clarifications and objections of the persons concerned and comparable to the right of correction under Article 8 of Law No. 47/1948 (the so-called ‘Press Law’).

The Court specifies that such a measure poses no limitation on public opinion but rather allows a reader to be aware of both “dissenting opinions” and the “subjective truth” of the person concerned and, at the same time, has the important function of fostering pluralism under Article 21 of the Constitution.

The merit of the Decision certainly lies in having set the limits and scope of the precautionary protection admissible in cases of damage to the right to honour and reputation, while respecting the prohibition under Article 21, paragraph 3, of the Italian Constitution and the consequent prohibition of precautionary measures equivalent to seizure as set out in the Supreme Court’s case law.

To conclude, there is a commendable intent of the Court of Milan to fill a gap in precautionary protection (left by the above-mentioned judgments of the Supreme Court’s Unified Divisions) that, in cases of violation of the right to honour and reputation flowing from publication of defamatory information, is strongly felt by those concerned.

This article is for information purposes only and cannot be considered as a professional opinion.

For further information, please contact Gianluca Massimei or Guido Zanchi.