The news of the alleged unauthorised access to databases of the judicial authorities by a law enforcement officer and the alleged making available of the results to newspapers has (re)produced yet another debate on the limits of (or to) investigative journalism in relation to press freedom by Andrea Monti – Initially pubished in Italian by Italian Tech.
Here again, the ‘Coppi-Bartali polarisation’ —a metaphor insipred by the fierce rivalry of the two cycling superchampions of the fifties— was not long in coming, and the positions were radicalised in a rather confused and, at times, simplistic manner, overlapping different planes in terms of responsibilities and rights.
Thus, on the one hand there are the supporters of the ‘absolute’ right of the press to gather and publish any news concerning the facts of power regardless of how it was gathered. They are pitted against equally die-hard defenders of the ‘absolute’ right to privacy and/or those who worship the idea that freedom of the press cannot extend to justify the commission of crimes.
There are no ‘absolute’ rights
To understand this debate, it is necessary to agree on a starting point: there are no ‘absolute rights’ because every right can be compressed —or even denied— in case of need. This may seem a counter-intuitive statement, but it becomes difficult to dispute if one considers that even the right to life is negotiable, given that, for example, murder in self-defence is not punishable.
However, in recent years, there has been a tendency towards the absolutization of rights, including privacy and freedom of expression, which have been turned into fetishes and are often considered inviolable to the detriment of others that are potentially conflicting and equally deserving of protection.
This (mistaken) belief also extends to freedom of the press, and in particular to investigative journalism and debunking activities, where it is perceived as a right without limits or responsibilities.
Constitution and Freedom of the Press
The Italian Constitution certainly protects freedom of the press and freedom of expression, but not to the point of legitimising the commission of crimes. The activity of journalism, in fact, does not enjoy ‘absolute’ freedom, as it too is subject to a series of regulatory limits, ranging from the control of access to the profession (only those who are member of the journalists statutory body may work as journalists), to the duty to check the legitimacy of the news (hence the obligation to have an editor-in-chied) to civil and criminal liability for the consequences of publishing news that should not have been reported, or should not have been reported in certain ways (hence the applicability of the rules on violation of secrets, defamation and hate speech).
Case law and journalist liability
If, also thanks to the case law body assembled over the years, it is relatively easy to decide whether a piece of news could or could not be published, the same cannot be said for the manner in which the news was gathered.We are talking, in other words, about three long-standing problems: the limits of journalistic professional secrecy, the duty to protect sources, and the possibility of invoking some cause of non-punishability for the commission of offences aimed at gathering information needed to write articles.
To summarise, as some judgments have also ruled (the latest, by the Supreme Court, is 36407/23 published on 31 August 2023), the point is that the search for news does not justify the commission of offences (the cases decided by the judges concerned the insistence considered to be harassment by journalists who, not respecting the interviewee’s will not to make statements, continued to ask questions, staying on private property against the owner’s will, and the acquisition of information resulting from illegal activity).
It is clear that this jurisprudence particularly concerns investigative journalism, which often finds itself having to balance respect for the law and professional standards against the need to reveal financial scandals or political conspiracies, risking ending up in a grey area between legality and the search for truth.
Laws and (journalistic) investigations
The Italian legal framework, although not explicitly naming it, imposes specific limits on journalistic activity in terms of information gathering.
According to the Law on Public Security, only private investigators with a prefectural licence are authorised to gather information on persons and facts. This prerogative is mainly restricted to investigations into assets and the infidelity of partners and employees and can only extend into the criminal field if commissioned by a lawyer and performed by an investigator with a specific licence. Lawyers, together with magistrates and police forces, are the other figures who are legally allowed to conduct investigations in criminal proceedings. The law therefore delineates a restricted scope of persons authorised to carry out investigations, highlighting the formal and substantive limits that allow the rights of individuals to be compressed, albeit with different forces. Journalists, therefore, can certainly seek news, but they do not have a power expressly conferred by law to investigate to ascertain facts or build archives on persons.
While this distinction may be (quite) clear in theory, it is not so clear in practice because it is not easy to draw a line separating ‘mere’ news reporting from a fully-fledged investigation. This creates an obvious difficulty if one approaches the issue from the point of view of the limits of the journalist’s professional secrecy.
How robust is the journalist’s professional secrecy?
Unlike the lawyer’s professional secrecy —which renders useless any interception of communications with the suspect and strictly limits searches in professional offices— the journalist’s professional secrecy does not prohibit a public prosecutor from investigating sources, nor a judge from ordering the professional to reveal how he or she obtained the information. Therefore, it is only up to the journalist to protect those who provide him with information through a series of operational measures that may make it more difficult to identify the confidential source. On the other hand, he or she must decide whether to keep silent before the judge, risking criminal charges in turn.
Whistleblowing platforms. Cure worse than the disease?
One ‘Italian-style’ solution could be to set up systems to receive anonymous reports that do not allow the sender to be traced.
Traditional methods, such as parcels left in the letterbox of a newsroom or the equally classic phone call with an altered voice, have given way to platforms and e-mail services that make the message received essentially untraceable.
Using these systems, a newspaper could defend itself by arguing —correctly— that once it has become aware of a news item, it has the right to publish it if the news turns out to be well-grounded, and that since it did not actively contribute to seeking it out, it has no way of knowing whether it was acquired in violation of the law.
Once again, however, the devil is in the details.
If the ‘tip’ concerns a state secret or the dissemination of information that is still covered by the criminal investigation secrecy, it is difficult to argue that the source of the news is lawful.
Moreover, applying a nuanced reading of criminal intent , a zealous investigator might go so far as to assume that having set up a platform to receive completely anonymous reports means having, implicitly, wanted and accepted the risk that someone would use it to also send illegally acquired information.
Again, the newspaper could defend itself by claiming that there is no difference between receiving an anonymous paper letter or a message via a leaks platform. However, in reality, a practical difference that might make the two situations not comparable exists.
In the first case, that of the anonymous letter (or e-mail), it is the ‘whistleblower’ who contacts the newspaper without the latter having done anything to stimulate the sending of the information; whereas in the second case, it is the newspaper that actively arranges the conditions for receiving (or instigating the sending of?) illicitly acquired news.
It should also be considered that secret information does not necessarily relate to the commission of crimes or inappropriate behaviour, but may concern —as in the case of diplomatic cables— the necessary confidentiality of conversations between states. The contents of these communications are, of course, of great interest, but this does not mean that they can be freely republished.
In other words, ‘secret’ does not always equate to ‘illegal’.
The Univited Guest
It is quite clear that it is no longer possible to deal on a case-by-case basis with the issue of source protection and the issue of the right to publish news about the powers-that-be.
This is, in other worlds, one of those topics that, indeed, would require a (not simple) regulatory intervention.
It would be difficult to defend, in constitutional terms, a rule that made tout-court non-punishable the journalist who commits crimes to obtain news. Even members of our secret services, to whom the law recognises the so-called ‘functional guarantees’, cannot commit any crime and certainly are not authorised to commit murder.
However, one could reason about extending the mitigating circumstance already present in the penal code, which provides for a reduction in punishment if the act is committed for reasons of particular social or moral value. Or one could envisage more favourable penalty treatments only for cases involving the disclosure of unlawful ‘facts’ of power.
The present
Whatever the future options, to date, claiming that in the name of the right to report news one can (or must) disregard the law is simply wrong. Or, rather, one cannot claim to violate the law in the name of one’s own worldview and then claim not to be tried in court.
An example clarifies the meaning of this observation: Italians have arrived at divorce and abortion —and one day we will also have the law on the end of life— thanks to the civil commitment of people who, in the name of an idea, have consciously violated the law, accepting to stand trial precisely to highlight the distance between the rules and common feeling and to undermine the system.
Marco Pannella and the many members of the Radical Party who shared those battles took personal risks to bring about a change in the law that reflected the changes in society.
They have denounced the injustice of certain laws, but they have never shirked the rules of the game, which is profoundly different from claiming the disapplication of the law in the name of the (real or presumed) superiority of one (own) idea.
This is the difference between the rule of law, the one in the name of which Socrates did not escape trial and condemnation; and the ethical one where, in the end, the only rule is that the rules apply for others and not for oneself.
The near future
Deafening, at this time, is the silence of the European Union, which is discussing the regulation on media freedom.
True, the EU cannot deal with criminal matters and national security aspects and therefore could not, even if it wanted to, establish enhanced protection for journalists from above in such cases.
It is also true, however, that in the public interest in the light of current events, a more careful reflection on issues such as the definition of ‘journalist’, the strengthening of professional secrecy and an extended protection of the social role of the free press would be highly desirable.