Precautionary Protection Of The Right To Honour And Reputation In Light Of The Principle Of Inadmissibility Of Precautionary Measures Equivalent To Seizure Of The Press Under Article 21, Paragraph 3, Of The Italian Constitution

Author:Mr Gianluca Massimei and Guido Zanchi
Profession:Nctm Studio Legale

In the event of online press articles causing damage to honour and reputation, without prejudice to the prohibition of precautionary measures having equivalent effect to seizure of the press, the victim must be afforded effective protection of his/her right, in light of the principle of inviolable and effective judicial protection.

In such case, therefore, the preventive measure that, according to the Court of Milan, ensures a fair balance between the right to judicial protection (Articles 24 and 113 of the Italian Constitution) and the prohibition under Article 21, paragraph 3, of the Italian Constitution (as specified by judgment No. 23469/2016 of the Supreme Court en banc) is the precautionary request for an "update" of the information published including clarifications of the person concerned.

The case to which the Decision applies is about interim proceedings initiated by two lawyers against the editor of an online weekly newspaper to prevent dissemination and publication of certain information published therein, deemed defamatory by the persons concerned.

On the basis of the arguments put forward in judgment No. 23469/2016 of the Italian Supreme Court, the claim was declared inadmissible and challenged under Article 696 terdecies of the Italian Code of Civil Procedure before the Court's panel of judges. The Court of Milan had a chance to explore from a different perspective the issue of admissibility and the relevant scope of precautionary protection of honour and reputation of people damaged by allegedly defamatory press articles.

The Decision concerning the complaint is based on the case law principle set out in the aforesaid judgment of the Civil Supreme Court en banc (coming after judgment No. 31022/2015 of the Criminal Supreme Court en banc), which reaffirmed the principle whereby the protection under Article 21, paragraph 3, of the Italian Constitution, applies also to (exclusively or not) online newspapers and is extended to all types of precautionary, interim or restraining orders with a scope equivalent to seizure, aimed at limiting and/or preventing the dissemination of press articles.

On the basis of said principle, the Court of Milan identified a measure capable of ensuring, urgently and without recourse to any measures equivalent to seizure, a form of protection for people damaged by press articles detrimental to their honour and reputation.

The Court's panel of judges indeed argues that, in the absence of effective...

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