A stupid law and a perverse “criminal” sentence

An article by Giancarlo Livraghi, published on Gandalf.it, comments the Modica Court decision that indicted a website for being “clandestine”.

“Censorship” was abolished and outlawed in Italy sisxtytwo years ago. Freedom of the press and of personal opinion is not only established by the Constitution, but also deeply rooted in custom and in all perceptions of civil society. There are, however, some worrying facts. The concentration in a few hands of a large part of the information system. A general, “centralized” myopia of the “dominant culture”, that is partly deliberate manipulation and partly unintentional ignorance. A sly, apparently “benevolent”, culture of superficiality and vagueness that tends to lull, confuse and subdue.

A disturbing maverick, in this context, is the internet. Originally feared, later ambiguously applauded, anyhow misunderstood, the net remains annoying for those who are in the habit of having control and are irritated, if not scared, by a tool that they can’t dominate or “tame”.

It would be long to repeat here what I have written several times, since I published Cassandra in 1996 and continued with eighty articles in Italian (thirteen also in English) in the “freedom and censorship” section of my website. But a recent episode deserves some comment.

In this ambiguous context there are laws and “norms” that are poorly conceived and applied even worse. One, in particular, is the law on “clandestine press” (1948) to which was added, fiftythree years later (2001) a clumsy definition of “authorization” for “journalistic publications” online.

Before we get into this specific subject, let’s look a two articles of the Italian Constitution.

In Article 3 it is stated that «All citizens have equal social status and are equal before the law.» But this isn’t quite so. There are laws (in addition to “social status”) that make some citizens “more equal than others”. And there are several formally organized categories that have improper and unreasonable privileges. In addition to all sorts of limitations (or bureaucratic hindrance) of free enterprise, in business, society and culture, that everyone agrees should be removed, but de facto remain – and sometimes get worse.

In Article 21 it is stated that «Everyone has the right to freely express thoughts in speech, writing, and by all other communication.» Also that «The press may not be controlled by authorization or submitted to censorship.» But this isn’t quite so. There are “authorization” rules (as well as other hindrances and privileges) that get in the way of freedom of information and communication (generally defined as “freedom of the press” ever since the concept was established in 1848 by the “Statuto Albertino” – that in 1861 became the Constitution of what was, at the time, the Kingdom of Italy.)

Within this framework, let’s get to the specific case that has, quite rightly, caused a wave of protest and indignation – and to the two awkward laws that have made it possible. The facts are reported (not always accurately) in several online documents. Two reliable sources are the news item published by Punto Informatico on June 19, 2008 and the more detailed analysis in MCreporter on September 9 (both are in Italian). It was briefly, but correctly, reported in English by Digital Thought on May 21, 2008.

A “criminal sentence” issued by a Court in Modica (Sicily) on May 8, 2008 condemned historian Carlo Ruta, defining “clandestine press” his website because it wasn’t formally “authorized” as a newspaper or a magazine. (The site was no longer active. It had been “seized” by the police, by order of the Modica Court, in 2004).

One of the absurdities in this Court decision is that the website was defined as “testata giornalistica” because it had a “heading”. By that criterion, any publicly available correspondence written on “letterhead” could be criminally condemned as “clandestine press”.

I leave it to historians of law and politics to try to understand why, when fascism had been defeated and censorship had been abolished, in 1948 a law was passed that restricts press freedom and is in contrast to Article 21 of the Constitution.

But let me “try to guess” why in April 2001 the Italian government proposed, and parliament “distractedly” approved, a poorly conceived (and never properly amended) law that extends press regulation to online communication. (Some comments in this subject are in Bad legislation – again that I published in May, 2001.)

All governments and all political parties and parliamentary groups have always declared that they don’t intend to limit or control in any way the freedom of the press and, generally, of opinion. On the sincerity and coherence of such statements we can have some doubts, but let’s assume that the purpose of the messy 2001 law was not censorship. The idea was to extend to online newspapers and magazines the ambiguous “benefits” (subsidies) that exists for print – as well as the “responsibility” controls (a system that has already caused several distortions and manipulations in its “traditional“ definition).

This means that an online “newspaper” or “magazine” must be “registered” as such – and the editor must be a member of an officially regulated association called Ordine dei Giornalisti, a privileged “caste” that many agree should be abolished, but in spite of its absurdity continues to exist. The consequence is that, if the unclear text of the law is interpreted extensively, approximately five million Italian websites could be declared “illegal”.

That law has been in existence for five years and there has been no “extermination” of Italian online activity. But the fact remains that, by this or other means, “errors” are possible. Several other flaws in law or regulation have been used to “blacklist” or “seize” online activities that were disliked by authorities or powerful private lobbies.

What makes the “Modica affair” unique is that, so far, it’s the only case of the 1948 “clandestine press” law and its 2001 extension being applied to a website. Obviously protest and indignation must not relate only to this individual case, but above all to its general implications.

The editor-owner of that website is not in jail. The “penalty” is a 250 euro fine, plus legal expenses. But obviously the problem is that, for totally unacceptable reasons, he has a “criminal” record and his site has disappeared.

It’s rather nearsighted to be complaining about this episode after having paid little attention to the fact that there is a nonsensical, and never properly amended, law. And there are other situations of Italian, or even foreign, websites being “removed” or made inaccessible, for a variety of unreasonable motives, with a too easy “voluntary” cooperation of internet providers who are more concerned with the protection of their business than with the rights and privacy of their customers.

Why was there such a violent aggression on that particular website? It’s improper to “guess” making unproven assumptions. But the fact is that the “cancelled” content was about collusion of politics with mafia – probably irksome for some powerful interests. But let’s assume, for the sake of this argument, that it was only a “mistake” in the interpretation of an unclear law. The fact remains that such “errors” are possible – and unacceptable in a civilized country.

There are many “tricks” that make it possible to limit, though not totally destroy, freedom of opinion and information.

There is, by the way, a not irrelevant “technical detail”. It is possible, by several different means, to make available online whatever has been “prohibited”. “Seizing” or “cancelling” has little, if any, effect on criminals or other “wrongdoers”. This sort of persecution is very painful for honest people who want to freely express “uncomfortable” opinions, irrelevant for the mischievous, ranging from the extreme of terrorism and organized crime to all sorts of frauds and spamming.

In the (unproven) hypothesis of an absurd legal procedure being influenced by someone who wants to remove uncomfortable information or opinion, the irony is that it backfires, because the resulting “noise” spreads more widely than the original source. But that, of course, doesn’t justify the perversity of the Court’s decision or the clumsiness of the law.

It’s hard to tell how much all this is caused by the ignorance of “powerful” people who don’t understand what the net is and how it works – or by an insidious desire to repress freedom of opinion and control sources of information. But the fact is that, no matter how disguised, repressive intentions exist even in the most free and open societies – and watchdogs need to be consistent over time, with constant observation of how things evolve, not just short-lived “indignation” over an occasional episode, soon to be forgotten while abuses continue. And we should never forget that censorship isn’t only evil, it is also stupid.




Published also by EDRi
European Civil Rights
on 24 September 2008






There are spokesmen of the journalist profession (that grotesque laws pretend to be “protecting”) who are concerned about this “case” as a specific problem – as well as its general implications. An interesting statement by Franco Abruzzo, chairman of the Lombardy Ordine dei Giornalisti, was published on September 9, 2008. This is an English translation of his most relevant remarks.

«The text of the sentence issued by judge Patricia Di Marco, that for the first time in Italy and in Europe has condemned for “clandestine press” the editor of a website, not only justifies the concern and protest that have been spreading in the net and in the country in recent months, but causes additional reasons for alarm. As the trial papers reveal, no regular publishing frequency of Accadeinsicilia has been proven. However the judge has concluded that the site wasn’t just a “periodical” magazine, but (even worse) a daily newspaper – and, as such, a “clandestine” publication. An obvious absurdity.»

«This judiciary blunder falls into a difficult context. Several events prove that some “strong powers” in Sicily, criticized for their behavior, are doing all they can to to silence Carlo Ruta, “guilty” only of believing in his task of research and documentation. It’s enough to say that the historian has been subjected to four sentences, by three tribunals in the region, inflicting outrageous financial penalties, for a total of 97 thousand euros.» 

«The perversity of the Modica Court decision goes, anyhow, well beyond that specific scenario, finding a natural reflection in the current political situation, that is increasingly questioning the liberties established by Article 21 of the Constitution. Remote from the motives of a true democracy, close to the logic prevailing in Teheran or Beijing, the Sicilian sentence opens an extremely dangerous breach, offering to Italian “potentates”, more and more scared by the freedom of the web, a “precedent” for persecuting “unfriendly” bloggers, websites that provide free information, documentation and research. Therefore it’s important that the reaction to this act, already strong online and relevant in other environments, gain additional momentum.» 

While coming many years too late, as all “protests” on this or other individual cases, the “state of awareness” shows that, at last, it is becoming a bit more widely understood that the multiple ways of repressing the net are a serious threat for general freedom of information and opinion – and all sorts of disguises are clumsily trying to hide the fact that this is censorship.