What does the abolition of film censorship mean?

From the protection of morality to the protection of minors: censorship changes name and role. However, it remains the same, if not worse. The analysis of Andrea Monti, professor of law of public order and security at the University of Chieti-Pescara – Initially published in Italian by Formiche.net

At the beginning of April 2021, the Minister of Culture, Franceschini, announced the “Commission for the Classification of Cinematographic Works” to finally starts its functions. This commission, established by Legislative Decree 203/2017, never came into operation because of the lack of further administrative internal regulations. The Ministry of Culture has presented this news as the definitive abandonment of film censorship favouring, by contrast, a system of classification of cinematographic and audiovisual contents whose sole purpose is (or would be) to protect minors. Therefore, the narrative goes, the State relinquishes its censorship control on artistic creations previously excerced in the name of public order, public safety and morality. The new deal is a modern and flexible rating tool that avoids the repeating of sensational cases such as the well-known “Last Tango in Paris” and the film “Totò who lived twice”. It does not restrict anymore the performance of creative acts.

In reality, however, the system designed by the 2017 reform and finally implemented in recent days does not eliminate censorship but moves it elsewhere and does not limit the State’s ability to intervene in cases of (geo)political relevance.

As regards specifically the film world, the new clearance is, in fact, based on self-certification. Producers, distributors or – as stated in the decree 203 – “whoever has the right” declare in which rating, according to them, the work they intend to circulate in the Italian territory should be included. It follows that not to risk a circulation limited by a too strict rating, “those who are entitled to it” will have an interest in containing the “creative impulses” of screenwriters and directors  to ensure the broadest possible audience both in theatres and in the subsequent television and on-demand passages.

Of course, one could reply that this concern lacks of merit by seeing what currently runs on cinema screens. However, one has to consider that the film industry is… an industry, and the industry pursues – legitimately – profit. Consequently, unless it is a precise marketing strategy aimed at “causing a scandal”, it is unlikely that artistic freedom might affect the marketability of a motion picture.

However, apart from these considerations concerning the relationship between artists (or, more often, rights holder) and producers, the issue of the role (and necessity) of state censorship remains unaffected. Firstly, as mentioned a few lines ago, it is not correct to say that it has been abolished. The State still retains control over the circulation of contents. One can also avoid using the word censorship, but that is what it is about.

Moreover, Article 528 of the Penal Code, which punishes the dissemination of obscene and gruesome material, is still in force, as are the rules punishing the vilification of State bodies and other similar provisions. Therefore, a judge can always consider that a specific film is against the law and order its preventive seizure, then confiscation and destruction. In other words, the fact that a film complies with the ministerial rating does not automatically make its dissemination free and legal.

Secondly, Law No. 205/1993 provides for criminal sanctions for hate speech in any form (not only speech but also photo-visual representations). It allows the use of criminal seizure (both preventive and probative) regardless of the message’s ‘container’ (including, therefore, cinematographic works).

Thirdly, as far as the internet is concerned, in addition to the Criminal Code and the Mancino law, the dissemination of content through electronic communication services is regulated by Law 70/2020, which requires access providers to pre-activate services to block access to unlawful and inappropriate materials. Following this law, the Italian Communications Authority has adopted a regulation on the classification of online contents. It is doubtful that an independent authority can have the power to decide on matters that affect constitutional freedoms, despite the normative attribution. However until these regulations stay in force, refusing to abide is useless.

Finally, as the debate triggered by the tragic Charlie Hebdo affair shows, today, it is impossible to avoid the problem of the (geo)political use of the law and the limitation of rights in the name of realpolitik or, as the Anglo-Saxons like to say, lawfare.

Like it or not, therefore, the State – any state – needs censorship for purposes that go far beyond the ‘protection of minors, and that is why it has not been abolished. On the contrary, the result of the intersection between the new film clearance, Communication Authority’s content-rating regulation and the duty to block online content imposed on private entities is paradoxical. It creates a deadly synergistic effect. On the one hand, the State widens its reach, maintains the possibility of direct surgical interventions on specific contents. In parallel, the definition of “morality levels” and the supervision of their respect becomes a matter of private interest.

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