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Television programs: Limitations on the right to report news and the right of criticism. The difficult balancing act between journalists’ right to express their ideas and citizens’ rights to freely form their own opinions.

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The Court of Turin, with its judgment handed down on February 20, 2012, gives us the chance to briefly analyze the principles governing journalists’ activities and the different, often contrasting rights which come into play in connection therewith.

The case at hand was of national importance and filled the pages of the most important Italian newspapers: Inside a current affairs television program, that dealt with the Italian industrial system, a news feature concerning a race between motor vehicles belonging to three different car manufactures (that took place on a wet and snowy racing circuit) was broadcast and the results thereof were given (which, in the plaintiff’s opinion, were extremely defamatory and caused it to suffer considerable economic and non-economic loss).

In particular, the test conducted by the defendant was aimed at highlighting how the vehicle manufactured by the plaintiff (a sports car) was slower than the vehicles manufactured by its direct competitors, giving rise to the conviction that such car was of a poor quality when compared with those produced by the rival car manufacturers.

It was claimed, with a view to backing up the defendant’s claims, that the tests which had been conducted by the latter had been confirmed the conclusions reached by the specialized magazine Q.

The Court of Turin held, instead, that the defendant’s and the television company’s conduct was unlawful, thus giving rise to the award of damages provided for under article 2043 of the Italian Civil Code (hereafter c.c.).

More specifically, the Court ruled that the news feature in question had been cunningly made with a view to unjustifiably disparaging the plaintiff’s car.

During the broadcast in question, no mention had been made of the fact that the cars being compared had differing engine capacities, weights and electronic stability programs (which inevitably had an impact on the cars’ performance).

Other differences emerged from the comparison made by Q magazine since the tests conducted for the television broadcast had taken place on a wet and snowy surface (which, as is well known, has a considerable impact on motor vehicles’ performance), whereas those carried by the specialized magazine were conducted on a dry surface.

The tests conducted by the aforementioned magazine had led to the conclusion that the slowest car was the plaintiff’s sports model, but that the plaintiff’s car was the one to purchase since, for the purpose of assessing the sports qualities thereof, other factors came into play.

It had to be pointed out, therefore, that, although the cars in question were sports models, they were not designed exclusively for motor races (with the result that speed was only one of the parameters to be assessed – together with comfort and safety – of which account had to be taken).

The Court held, therefore, that the requisite of sticking to the objective truth had been breached: The claim that the car model produced by the plaintiff was technically inferior to the others did not correspond, in fact, to the truth.

The defendants’ position was worsened by the fact that the latter had alleged during the course of the program, for the purpose of backing up its claims, that the conclusions reached by it had been confirmed by those reached by the aforementioned specialized magazine, thus reinforcing its claims in the eyes of the viewers who, knowing how famous the aforementioned magazine was, were all the more induced to give credit to the contents of the contested news feature.

In truth, as had been proven in trial, the aforementioned magazine had given a completely different assessment of the facts.

The defendant’s conduct was, in the Court’s opinion, twice as reprehensible since Viewers were not only provided, in fact, with untrue information, but – for the sole purpose of backing up the negative image given of A– no mention was made of the fact that Q. magazine had assessed positively motor vehicle A giving it – through clear and immediately comprehensible statistics – the highest amount of points.

As regards the requisite that facts must be true, the Supreme Court specified that news is not true when – even though the single facts that are being reported are true – other facts which are strictly connected therewith are either willfully or negligently being omitted in such a manner as to alter completely the meaning thereof or when the facts that are being reported are described in emotional terms or are objectively designed to mislead viewers into believing that the facts are different from how they are in reality (Italian Supreme Court No. 1205/2007).

As regards, instead, the requisite that the facts be pertinent, the Court held that the general public has no interest whatsoever in learning about news which is not true. The news in question must, in fact, be entirely true, since only the rigorous observance of the truth will satisfy the social need to be given such information (which is not the case with defamatory news that do not allow the provision set forth in article 51 of the Italian Criminal Code to be applied thereto; cfr. Italian Criminal Supreme Court, Section V, judgment no. 177154 of 1987, as well as Italian Criminal Supreme Court, Section V, judgment no. 187195 of 1991).

The Court held, therefore, that the case at hand concerned not so much the right of criticism cited by the counterpart as the right to report news.

As is well known, the right of criticism allows colorful and harsh language to be used (without prejudice to the duty not to report false facts) insofar as it is inherent in this type of news.

The aforementioned judgment is, however, important since it states that the right to the freedom of expression enshrined in article 21 of the Italian Constitution includes the right not only to inform but also to be informed, which are two faces of the same coin: Journalists must express freely their opinions but citizens must also exercise such right, with the result that the information disseminated must be objectively or presumably true.

The Court held that the defendants had, in the case at hand, potentially harmed all consumers by misleading them as a result of having provided only some and not all of the information concerning such matter.

The Court stated, in relation thereto, that the European Court of Human Rights has held – in considering inextricably linked together the giving of information (by the media) and the giving of consent thereto (by viewers, listeners or readers) – that, on the basis of the principle that the dissemination of journalistic information plays a vital role in democratic societies, journalists are entitled to report facts which are of general interest and the public is also entitled to have facts reported to it which are true (European Court of Human Rights, Section II, judgment No. 42211 dated July 17, 2008 on defamation committed in the press).

The Court awarded damages for economic loss, and in particular the money spent by the plaintiff in contrasting in the media the defamation which had been committed to its detriment, as well as non-economic damages suffered by the A.M. brand, also ordering the publication of the judgment in the main Italian newspapers.

 

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