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Freedom of speech

2 min.

In the previous issue of The Mag, Lawyer Cancellieri talked about “Alcohol – The magic number”.
In this, however, he talks about freedom of speech.

michele-cancellieriFreedom of speech is directly related to freedom of opinion. In every modern democracy it is an absolute right, intrinsic to human nature. It is the ability of having personal thoughts about a topic and being able to express them.

In the Italian Constitution, the 21st Article establishes: “Everybody has the right to express freely his/her own thoughts through speaking, writing and any other means”.

It is easy to understand that freedom of speech is not strictly absolute, in fact the law establishes some limitations in order to avoid the abuse of it. The Italian criminal code enumerate the crime of “insulting” (art. 594) and of “defamation” (art. 595). The first one indicates the act of offending “the honor and the reputation of a person standing before you”, either verbally or on paper. The second one indicates the act of offending someone’s reputation by talking or writing to at least two other people.

The criminal code is dated 1930, while the Constitution became effective the 1st of January 1948. Since then, the public morass has changed a lot. It is natural to ask what is meant by “honor” in the year 2013. The issue is quite complex, and what you really need to know is that a Judge is empowered to determine every single case in order to establish if a statement is offensive to someone’s reputation or not. His evaluation is based on the interpretation of the common sense of the expressed words.

A couple of words about defamation and the Internet. It is an urban legend that the web is a virtual space without regulations. This is totally wrong. Everybody must remember that posting something on Facebook, Twitter etc.. is the same as writing in a more traditional medium, with the same legal consequences.

The rights to criticism, and to satire, are important aspects to freedom of speech. Criticism must be founded on real facts which are interesting to the public. It can be provocative, but not immoral or offensive, if so, it is possible to be accused of crime. Satire is instead a parody of reality which is expressed with surreal paradoxes and metaphors, in order to make people laugh and express opposition to customs. It is punishable if it becomes a useless insult focused primarily on ridiculing a person.

There is an interesting exception to the freedom of speech in Italy. If you are elected to the Parliament you are immune to prosecution, because the 68th article of the Constitution establishes that an elected politician or senator cannot be called to answer about any opinion he/she expressed while fulfilling his/her elected duty. What is curious is that the 68th article has been interpreted as applicable to every moment of the life of the official. For example in the UK the immunity is granted only when a politician is speaking and voting during meetings in the Parliament.

To end with a suggestion: if you are not a comedian or a politician, say what you want to, but choose your words carefully.

Michele Cancellieri

avv.cancellieri@libero.it

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