Research, travel, and legal dispatches from my Fulbright year in Bologna, Italy.
Italian law, unlike American law, does not require defamatory speech to be false. Above: Truth and Mercy by Pompeo Batoni, circa 1745. Image courtesy of Wikimedia Commons.
In American defamation law, truth reigns supreme.
American law defines defamation as false speech that harms a person’s reputation. If the speech is true, it’s not defamatory, and the plaintiff will be limited to other theories of recovery, such as invasion of privacy or misappropriation. The key issue therefore becomes which party has the burden of proving truthfulness: the plaintiff or the defendant?
In Italian law, truth plays a much more complicated and subtle role. Information can be defamatory even if it’s true, meaning truth is only a defense in certain situations, and the burden of proof generally falls on the defendant.
Evolution of the American View
Under the original common law of most states, speech that hurt a plaintiff’s reputation was presumed to be false. Truth, however, was an affirmative defense; if the defendant could prove the speech was in fact true, he or she was not liable for defamation.
Beginning in the 1960s, however, the truth of the matter asserted stopped being an affirmative defense and shifted more toward an element of the plaintiff’s prima facie case.[i] Instead of the defendant needing to prove truth to avoid liability, the plaintiff needed to prove falsity as one of the elements of a successful case.
In 1964, in the landmark case New York Times Co. v. Sullivan, the Supreme Court held that false spech should not only be allowed — i.e. not censored — but afforded constitutional protection. The Court’s reasoning was that without the freedom to make mistakes, true speech would also be suppressed.
“Erroneous statement is inevitable in free debate,” the Court wrote. “It must be protected if the freedoms of expression are to have the ‘breathing space’ that they need to survive.”
Otherwise, would-be critics of official conduct “may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court of fear of the expense of having to do so. They tend to make only statements which ‘steer far wider of the unlawful zone.’”
In order to avoid this “chilling effect” on speech, the Sullivan Court held that a public official suing for defamation could not recover damages unless he proved the statement was made with “actual malice” – that is, with “knowledge that it was false or with reckless disregard of whether it was false or not.” In order to prove the speaker was reckless as to the falsity of the statement, the plaintiff must also prove the statement is false.
Three years later, in Curtis Publishing Co. v. Butts, the Court applied the same standard to “public figures” — people who do not work for the government but, like public officials, “often play an influential role in ordering society.” Finally, in 1986, the Court in Philadelphia Newspapers, Inc. v. Hepps, held that a private citizen suing for defamation has the burden of proving falsity if the speech relates to a matter of public concern.
“There will always be instances when the fact-finding process will be unable to resolve conclusively whether the speech is true or false; it is in those cases that the burden of proof is dispositive,” the Court wrote.
In other words, if something can be proven neither true nor false, the legal party tasked with proving the truthfulness of the matter will lose. In those cases, the First Amendment instructs that the law should favor the speaker, and the burden is on the plaintiff to prove falsity.
Thus the constitutional guarantee of freedom of speech requires the plaintiff to prove falsity when the plaintiff is a public official, public figure, or private figure bringing a defamation lawsuit on matters of public concern.
States can then decide whether private figures bringing defamation suits about information that is not a matter of public concern must prove falsity as an element of the claim, or whether truth is just a defense to the lawsuit. Most states seems to fall in the former category, requiring the plaintiff to prove the speech was false.
Italy Resembles the Traditional U.S. Standard
The Italian Penal Code of 1948 defines defamation (diffamazione) as, “Damage to the reputation of a person through communication with other persons” (Codice Penale, Art. 595). In general, truth is only a defense to defamation in three situations: when the defamed person is a public official and the fact alleged relates to the exercise of his or her official functions; if criminal proceedings are pending or brought against the defamed person concerning the alleged fact; or if the claimant formally requests that the judgment should extend to ascertaining the truth or falsity of the alleged fact (Codice Penale, Art. 596).
But Italy, like the U.S., recognizes a constitutional law component of defamation that complicates the role truth plays in the proceedings.
In the U.S., freedom of speech and the press is enshrined in the First Amendment of the Constitution, which reads, “Congress shall make no law … abridging the freedom of speech, or of the press.” In Italy, Article 21 of the Italian Constitution of 1948 states, “Anyone has the right to freely express their thoughts in speech, writing, or any other form of communication. The press may not be subjected to any authorisation or censorship.”
A plain-language reading of these clauses suggests that the American conception of freedom of speech is much broader than its Italian counterpart. The promise that Congress shall make “no law” could apply to pretty much anything, be it prior government approval, copyright, defamation, or prosecution of journalistic sources. The Italian clause, by contrast, only prohibits “authorisation or censorship,” meaning the government can’t require newspapers to submit their articles for prior approval before publishing.
But just as “no law” in the First Amendment does not really mean the U.S. is a bastion of unfettered free speech, the Italian Constitutional Court has held that Article 21 guarantees more than just freedom from authorisation and censorship. Instead, Article 21 establishes a more general diritto di cronaca, or freedom of the press, that goes beyond formal censorship.[ii]
In 1984, Italy’s Supreme Court of Cassation established three criteria under which journalists can be “justified” in publishing defamatory information in accordance with the Article 21 diritto di cronaca (Cassazione civile, sez. 1, Oct. 18, 1984).
“Justification” is a broad criminal defense that applies to more than just defamation (Codice Penale, Art. 51). The Court of Cassation held that if the information is true, socially useful or socially relevant, and “restrained,” meaning the journalist communicated it in a way that respected the subject’s dignity, the journalist is “justified” in damaging the person’s reputation.
Critically, the Court held that when raising the defense of justification, the truthfulness of the information can be presumed if the journalist has seriously verified his or her sources of information. This is called verità putativa, or putative (presumed) truth.
“Serious verification of sources” is actually quite similar to the American standard for actual malice. American journalists are expected to exercise reasonable care in reporting, but are permitted to trust sources that seem reliable unless confronted with something concrete that would make them question the information obtained. And in cases where truth can neither be proven nor disproven, the Italian presumption of proof would seem to provide crucial protection to journalists.
This is not to suggest that it’s equally easy or difficult to bring — or win — a defamation lawsuit in Italy versus the U.S. There are many other issues at play besides truth, and as I wrote previously, Italy is notorious for frivolous defamation suits.
But when it comes to the role that truth plays in the proceedings, in certain situations, Italian and American law end up in a surprisingly similar place — despite taking very different routes to arrive there.
[i] This evolution was in many ways a natural development of the “marketplace of ideas” theory, which was first articulated in American jurisprudence in 1919 in Justice Holmes’ dissent in U.S. v. Abrams and went on to become the bedrock of American free speech law.
Holmes wrote that determination of the truth is “better reached by free trade of ideas,” and that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” He was saying don’t censor speech; let people write and say what they want, and only the strongest, most truest ideas will survive. Sullivan recognized that the only way to have a robust market is if speakers will not be legally liable for reasonable mistakes.
[ii] Diritto means “right” and cronaca literally translates to “news” or “news report.”