This article was originally published on the Article19‘s website.
This report examines both legislation and practices related to ‘hate speech’ in Italy, with a particular focus on the media. It examines the compliance of the respective legislation with international freedom of expression standards and offers recommendations for its improvement.
‘Hate speech’ is an issue of growing concern in Italy, catalysed in recent years by a number of factors. These include: the surge in migrants and refugees arriving from different countries and their struggle for integration; the incendiary tones used by political parties and movements within public debates; and biased media reporting on issues related to diversity and minority groups. The problem of ‘hate speech’ has been further exacerbated by the spread of comments in online forums and on articles and social media platforms that incite hatred and violence. Alongside the increased instances of ‘hate speech’, Italy has experienced an increase in the number of reported ‘hate crimes’ based on ethnic, racial, religious, or sexual grounds.
Despite robust protection of both the right to freedom of expression and equality in Italian law, the existing legal framework on ‘hate speech’ does not fully comply with international human rights standards. In particular, the protected characteristics exhaustively listed in criminal law concerning the most serious forms of ‘hate speech’ are limited to race, ethnic origin, nationality, or religion, and proposals to expand this protection have stalled in parliament. Further, the prohibitions of incitement in criminal law do not follow international standards in this area; and a range of other vague offences are prohibited by the criminal law.
The application and interpretation of the existing ‘hate speech’ provisions contained in criminal law are also inconsistent. Italian courts often consider the racial or ethnic bias as an aggravating circumstance in cases of criminal defamation, or consider them under the crime of ‘criminal conspiracy’ carried out by organised groups on the Internet via blogs or social media.
In addition to protections available under criminal law, victims of ‘hate speech’ can either initiate proceedings within the criminal trial to claim compensation for damages or pursue a separate civil defamation lawsuit. Administrative pecuniary sanctions are imposed in cases of defamation of religion/blasphemy, and a system of police warnings was established by a recent law protecting minors against ‘cyberbullying’.
Two equality institutions play an important role in countering ‘hate speech’ in Italy through monitoring and positive measures: these are the National Office Against Racial Discrimination (UNAR) and the Observatory for Security Against Acts of Discrimination (OSCAD). UNAR’s tasks include assisting victims of discrimination, receiving and monitoring complaints, promoting research in the area, running training courses, campaigning, and reporting annually to parliament and the government. OSCAD also receives discrimination complaints. UNAR and OSCAD exchange information and data on hate crimes and have previously organised joint training activities and awareness-raising campaigns.
There are several relevant laws that can be used to respond to ‘hate speech’ in the media. The legislation also provides measures for the promotion of diversity and inclusion of minorities in the media (though the protection is restricted to historically acknowledged linguistic minorities). The applicable media legislation prohibits all content that contains “incitement to hatred in any way motivated by” or that “instigate intolerant behaviours based on” differences of race, sex, religion, or nationality. Special provisions on the protection of minors are established in the Code on TV and Minors, and incorporated by law. The broadcast media regulator, Italian Communications Regulatory Authority (AGCOM), is tasked with enforcing these provisions. However, AGCOM has limited powers to intervene and issue sanctions. For the most part, AGCOM only intervenes when violations regard the special provisions for the protection of minors. Further, AGCOM has no legal powers to regulate content hosted by online intermediaries. It has, however, set up the Permanent Observatory of Guarantees and Protection of Minors and the Fundamental Rights of the Person on the Internet, which monitors cases of incitement to hatred, threats, harassment, and cyberbullying on the Internet and drafts co-regulatory codes of conduct in cooperation with Internet companies and social media platforms. Finally, AGCOM has recommended the amendment of the existing European Union (EU) E-Commerce Directive to compel Internet hosts and providers to adopt self-regulatory or co-regulatory codes of conduct to monitor third-party content, with a view to protecting Internet users – and minors in particular – from harassment and incitement to hatred.
With regard to print media, the updated 2016 Ethical Code of Conduct of Journalists, approved by the National Press Council, includes among the fundamental duties of the journalistic profession the duty to respect “the rights and dignity of sick people or people with mental, physical, intellective or sensorial disabilities”. The code also incorporates the Charter of Rome, a specific code of conduct for journalists who write on immigration and asylum-related themes. However, the disciplinary sanctions for violations of the code are rarely applied by the competent supervising bodies, causing widespread criticism of their effectiveness as a deterrent.
The code of conduct of the Italian advertising self-regulatory organisation, the Institute of Advertising Self-Regulation (IAP), does not include any explicit reference to ‘hate speech’. However, it establishes that all commercial communications must not offend “moral, civil and religious convictions” and “must avoid all sorts of discrimination, including gender-related”.
Summary of recommendations:
- All relevant legislation – in particular the criminal law provisions – should be revised for their compliance with international human rights standards applicable to ‘hate speech’; • The advocacy of discriminatory hatred that constitutes incitement to hostility, discrimination, or violence should be prohibited in line with Articles 19(3) and 20(2) of the International Covenant on Civil and Political Rights (ICCPR), establishing a high threshold for limitations on free expression as set out in the Rabat Plan of Action, as well as prohibitions on direct and public incitement to genocide and incitement to crimes against humanity;
- The protective scope of any measures to address ‘hate speech’ should encompass all protected characteristics recognised under international human rights law, and not be limited to the present protected characteristics of race, ethnic origin, nationality, or religion. In particular, the list of protected characteristics should be revised in light of the right to non-discrimination as provided under Article 2(1) and Article 26 of the ICCPR;
- Defamation should be fully decriminalised and replaced by appropriate civil remedies. Moreover, the Italian authorities should refrain from applying provisions of defamation on cases of ‘hate speech’ since the purpose of defamation laws is to protect individuals from false statements of fact, which cause damage to their reputation. Legal actions for defamation do not require an individual to show any ‘advocacy of hatred’, and should be distinguished from ‘hate speech’;
- The Italian government should abolish all other speech offences that can be inappropriately applied in cases of ‘hate speech’ and which, moreover, also fail to meet international freedom of expression standards. These include, in particular, Article 341-bis of the Criminal Code (insult to public officials) and Article 724 of the Criminal Code (defamation of religion/blasphemy);
- The guarantees of media pluralism for the promotion of diversity and inclusion of minorities should not be limited to the protection of ‘linguistic’ minorities. Provisions and policies should also address ensuring adequate access to media coverage of other minorities, in particular, racial, ethnic, and religious groups, people with disabilities, and LGBTQI individuals;
- The Italian government should ensure – both in law and in practice – that the equality body, UNAR, is fully independent and autonomous. In particular, it should not operate within a government department, but it should act as an advisory body to the authorities in drafting legislation, regulations, and practices against ‘hate speech’ and ensuring their compliance with the international human rights instruments to which Italy is party. UNAR should also improve its systems for the collection of data on bias-motivated offences in order to include information on the different types of hate crimes reported, the number of prosecutions, and the results of the subsequent legal proceedings;
- The state and broadcasting regulatory body, AGCOM, should continue its constructive cooperation with media outlets, Internet intermediaries, and social media platforms to respond to ‘hate speech’, including online. Any measures developed in this area should not hold Internet intermediaries liable for refusing to take actions that could potentially infringe their users’ freedom of expression, unless they are specifically ordered to do so by a court or by another competent and truly independent body mandated by law. When promoting codes of conduct in this area, AGCOM should advocate for Internet intermediaries to periodically review their terms of services and community standards, disclose details regarding content removal requests, and be transparent about the reasoning behind decisions to remove or retain content subject to removal requests. Proposed redress mechanisms should be available and accessible to all the parties involved in the removal of content deemed in breach of the applicable codes of conduct;
- The Italian government should develop and periodically review a comprehensive plan on promoting a culture of tolerance, equality, diversity, and mutual respect in society, including in schools. This should include but not be limited to improving media literacy;
- Public officials, including politicians, should realise that they play a leading role in recognising and promptly speaking out against intolerance and discrimination, including instances of ‘hate speech’. This requires recognising and rejecting the conduct itself, as well as the prejudices of which it is symptomatic, expressing sympathy and support to the targeted individuals or groups, and framing such incidents as harmful to the whole of society. These interventions are particularly important when inter-communal tensions are high, or are susceptible to being escalated, and when political stakes are also high, e.g. in the run-up to elections;
- A multi-stakeholder strategy to counter ‘hate speech’ in all its forms and in line with the international human rights obligations should be discussed and adopted in partnership by all relevant stakeholders, including state institutions, civil society organisations, broadcast and print media, as well as Internet platforms and operators;
- Journalists’ organisations should recognise their important role in this area and intensify their efforts to provide adequate responses. In particular, they should organise regular training courses and updates for professional and trainee journalists on the internationally binding human rights standards on ‘hate speech’ and freedom of expression and on relevant ethical codes of conduct. Journalists’ organisations should also ensure that ethical codes of conduct on ‘hate speech’ are effectively implemented; the codes should be widely publicised and internalised by journalists and media organisations in order to ensure a full compliance with them. Effective measures should be undertaken to address violation of the codes.