11 December, 2015

Hate speech in Italy

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Category: Human Rights, National campaigns
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Kép 13Written by Luisa Zappalà

Racism and discrimination in Italy have attracted international consternation.

The Observatory for Security against Acts of Discrimination (OSCAD), from 2011 to 2014 has received 354 reports of discriminatory acts and 270 warnings concerning the Internet (subsequently forwarded to Italian Postal and Communication Police Service).

More than a quarter of all Italian students say they have been sent offensive messages or threats via social-networking avenues like Facebook, Twitter and Whatsapp. Internet was confirmed as the area with the highest number of racist behaviour (84%): the anonymity guaranteed by the Internet seems to be one of the factors feeding the proliferation of racism. In Italy one fifth of children reported having “rarely” (12.9%), “sometimes” (5.6%) or “often” (1.5%) received or discovered false information about themselves on the Internet. Cases of offensive or threatening messages, pictures or videos are “rarely”, “sometimes” or “often” received by 4.3% of the sample population. Finally, 4.7% were victims of intentional exclusion from online groups.

Based on the reports received, OSCAD started up targeted interventions at local level to be carried out by the Police or Carabinieri; follows up on the outcome of discrimination complaints lodged with police agencies; maintains contact with associations and institutions, both public and private, dedicated to combating discrimination; prepares training modules to qualify police operators for anti-discrimination activity and participates in training programs with public and private institutions; puts forward appropriate measures to prevent and fight discrimination.

In 2004 the National Office Against Racial Discrimination (UNAR) was opened to receive complaints of cases of discrimination, analysing them and giving qualified assistance to victims and to promote studies, research, training, awareness raising and disseminating information on the struggle against racism.

On the subject, on 29th May 2013 at the Catholic University in Milan, the Ambassador Janez Lenarcic, Director of OSCE-ODIHR, and the Prefect Francesco Cirillo, Director General of the Criminal Police, signed a “Memorandum of Understanding”: an agreement for training police in recognising and investigating hate crimes, in order to implement the “Training Against Hate Crimes for Law Enforcement” (TAHCLE), the OSCE programme launched in 2011.

In Italy a specific law devoted to online hate speech does not exist. Nevertheless, Italy complied with the Recommendation No. 20 of the Committee of Ministers to Member States on “Hate Speech” (adopted by the Committee of Ministers on 30 October 1997 at the 607th meeting of the Ministers’ Deputies) where the term “hate speech” covers all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.

Italy has robust anti-discrimination legislation: for example Law n. 654/1975 (article 3) condemns to imprisonment of up to 3 years those who spread ideas or theories of superiority of one race or group of persons. Furthermore, Italy condemns to imprisonment from 1 to 6 years those who promote, incite and lead organisations, groups and other propaganda activities based on racial discrimination and recognises participation in such organisations or activities as an offence punishable by imprisonment from 6 months to 4 years.

Then the Law n. 654/1975 was modified by the so called Mancino Law (L. n. 205/1993) that also makes it a crime to “propagate ideas based on racial superiority or racial or ethnic hatred, or to instigate to commit or commit acts of discrimination for racial, ethnic, national or religious motives”, punishable by up to 3 years in prison; and to “instigate in any way or commit violence or acts of provocation to violence for racist, ethnic, national or religious motives”, punishable by six months to four years in prison. This second paragraph of Article 1, on the other hand, governs the case of inciting violence, rather than instigation or propaganda, and is therefore less applicable to what happens on the Internet.

The Mancino Law protects the supremacy of the human being, transforming the previous offense against the personality of the State in a crime against the human being.

The Mancino Law is still a sound instrument, but it is inadequate: it was enacted before the spread of the Internet and the social networks. Since nothing is said about the media through which this propaganda is disseminated, the Mancino Law can also theoretically apply to the Internet, but the problem of identifying “ideas based on racial hatred” remains a complex matter.

Since it is a crime of opinion, hate speech is a controversial problem in the area of manifestation of thought that represents a constitutional right with no unjustifiable exception (art. 21 Italian Constitution). The justification of the freedom of speech in order to protect other human rights makes the borders of the protection against hate speech even more uncertain. The case law is favourable to the incrimination of hate speech; instead the majority doctrine is opposed to combat the problem with criminal law instruments.

In Italy, the courts have applied the cases of hate speech in two situations that are particularly emblematic, avoiding doctrinal criticism:

  • as aggravating circumstance in the verbal abuse for discriminatory purposes;
  • when politicians due to their charisma or reputation influence negatively the audience, spreading hateful ideas (in support of it, Mancino Law provides for the suspension of rally for a maximum period of three years).

The courts have justified the application of the laws using the pattern of real danger than the alleged danger. The main difficulty is to assume in advance what consequences the diffusion of ideas or incitement to acts of discrimination can cause. Faced with this difficulty, judges verify the real offence of any act because not every manifestation of ideas, even if the content is considered racist, can be a crime. They must consider the suitability of the behaviour on a case-by-case basis depending on the contexts in which diffusion and incitement happen “to rebalance the gap between an abstract danger and the real damage of freedom”.

The Italian Supreme Court (i.e. Corte di Cassazione) with sentence n. 33179 passed on the 31st of July 2013 has extended the application of the Article 416 “Criminal association” (a crime against public order) to hate speech on virtual community, blogs, chat and social network. According to the Italian legal tradition, a criminal association is an organised criminal group that must be necessarily carried on by a plurality of people (three or more) joining together to commit crimes trough continuing criminal programme of serious crimes and a permanent organisational structure. The persons who promote, direct or organise the association shall be punished, for this sole offence, with imprisonment for 3 to 7 years. For the sole fact of participating in the association, punishment shall be imprisonment for 1 to 5 years.

The court of Cassation passed a judgement on IT crimes: Italian judges are competent on defamation aggravated by racial hate through offensive sentences/denigrating images posted on the Internet, even if the website is registered abroad, as long as the offense is perceived by users in Italy.

In conclusion, since the freedom of expression includes freedom to disseminate shocking and disturbing ideas, an international solution is desirable in order to find the balancing point between freedom of expression and hate speech.

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