True Yet Defamatory? Truth as a (Partial) Defense to Libel in Italian and European Law

By Janna Brancolini*

I. INTRODUCTION

In American defamation law, truth reigns supreme. Slander and libel are defined as false speech— spoken and written, respectively—that harms a person’s reputation. If the speech is true, it is not defamatory, and the plaintiff will be limited to other theories of recovery such as invasion of privacy or misappropriation. In Italian law, however, truth plays a much more complicated and subtle role. Information can be defamatory even if it is true, meaning truth is only a defense in certain situations.

This article analyzes truth as a defense to libel in Italian defamation law, puts those findings in the context of the greater European Union, and analyzes the implications for freedom of expression and freedom of the press. Section II provides a brief overview of the role of truth in American libel law before providing a more detailed background section on freedom of expression in the Italian Constitution and the defamation statutes in the Italian Penal Code. Section III analyzes how Italy’s provisions on truth as a defense to libel violate European law, and examines how Italy’s defamation statutes compare to other European states. Section III also explains how these provisions stifle freedom of expression in Europe, thereby damaging Europe’s global credibility in this area, and interfere with the watchdog role of the press. Section IV concludes by recommending that Italy amend its criminal code to define defamation as false speech, or at the very least bring its defamation laws into compliance with European standards for freedom of expression.