Janelle L. Cornwall, it Was the First Strike of Bloggers Ever: an Examination of Article 10 of the European Convention on Human Rights as Italian Bloggers Take a Stand Against the Alfano Decree

• Citation: Vol. 25 No. 1
• Publication year: 2010

IT WAS THE FIRST STRIKE OF BLOGGERS EVER:1 AN EXAMINATION OF ARTICLE 10 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS AS ITALIAN BLOGGERS TAKE A STAND AGAINST THE ALFANO DECREE

INTRODUCTION

On July 15, 2009, Italian bloggers went on strike to protest against a proposed law that would strictly regulate information published on the internet.2 Wearing white bandages covering their mouths, hundreds of bloggers gathered in the Piazza Navona in Rome, Italy and imposed a day of silence

during which they did not publish anything on their blogs, inviting Italian newspapers and television networks to remain silent as well.3 The protested bill, called the “Alfano Decree” after its creator, Angelino Alfano, Italy’s Minister of Justice, entitles anyone that believes her reputation has been damaged by posts containing factual errors to request that the author rectify the offending post.4 The bill applies to posts that are published anywhere on the internet, including blogs, message boards, a status update on Facebook or MySpace, or even a tweet on Twitter.5 The author has forty-eight hours to comply with the demand or face a maximum statutory fine of €10,000 (approximately $14,000 as of February 2011) and possible civil damages.6 The

1. Press Release, Alessandro Gilioli, Guido Scorza & Enzo di Frenna, It Will Be the First Strike of Bloggers Ever (July 12, 2009) (on file with author).

2. E.g., Arthur Bright, Italian Bloggers On Strike!, CITIZEN MEDIA L. PROJECT (Aug. 21, 2009, 1:07 PM),

   http://www.citmedialaw.org/blog/2009/italian-bloggers-strike; Francesco Federico, Italian Bloggers Strike Against Government, EUR. JOURNALISM CENTRE (Aug. 24, 2009), http://www.ejc.net/magazine/article/italian_ bloggers_strike_against_government; David Reid, Italian Bloggers’ Silent Protest, BBC NEWS (Aug. 14, 2009, 10:37 AM), http://news.bbc.co.uk/2/hi/programmes/click_online/8197639.stm.

3. Press Release, Gilioli, Scorza & di Frenna, supra note 1; see also Fulvio Paolocci, Italian Bloggers

   Strike, GLOBAL POST (July 16, 2009, 7:07 PM), http://www.globalpost.com/dispatch/italy/090716/italian- bloggers-strike.

4. Legge 30 giugno 2008, n. 1415 (It.) [hereinafter the Alfano Decree]. This entitlement is called the

   “right of reply.” Bright, supra note 2; Federico, supra note 2; Reid, supra note 2. “Anyone” includes individuals, companies, etc. Federico, supra note 2.

5. Federico, supra note 2. See, e.g., Horizon Grp. Mgmt. v. Bonnen, No. 2009L008675 (Ill. Cir. Ct.

   dismissed Jan. 20, 2010) (describing a suit in which plaintiff realty company sued defendant tenant for tweeting that it found moldy apartments acceptable).

6. Alfano Decree, supra note 4, at 29–30; Federico, supra note 2.

   bill was approved by the Chamber of Deputies on June 11, 2009, and is pending approval by the Senate.7

   
   

   Although the mainstream media overlooked the strike,8 Alessandro Gilioli, a blogger who organized the strike, continues to criticize the bill in the press, stating that the Italian government is “discouraging the use of the Internet.”9 The Alfano Decree raises important issues regarding freedom of speech rights10 that apply to anyone who regularly posts on the internet, whether in Italy or in any other country. As a founding member of the Council of Europe (“CoE”),11 Italy is a party to the Convention for the Protection of Human Rights and Fundamental Freedoms (the “European Convention on Human Rights,” or the “Convention”).12 Article 10(1) of the Convention provides that “[e]veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”13 On its surface, the Alfano Decree appears to infringe upon this fundamental freedom.14 However, Article 10 of the Convention also delineates limitations to the freedom of expression. Under Article 10(2):

   
   

   The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in

   
   

7. Double Act: 1415, CAMERA DEI DEPUTATI, http://nuovo.camera.it/126?PDL=1415&leg=16&tab=1& stralcio=&navette= (last visited Jan. 25, 2011). As of January 25, 2011, the bill has received preliminary approval after being amended by the Senate; final approval is still pending. See id.

8. Federico, supra note 2.

9. Reid, supra note 2.

10. See Bright, supra note 2.

11. 47 Countries, One Europe, COUNCIL OF EUR., http://www.coe.int/aboutcoe/index.asp?page= 47pays1europe (last visited Jan. 25, 2011). The relationship between the CoE and the European Union (“EU”) should be differentiated. Although EU members must also hold membership in the CoE and ratify the European Convention on Human Rights, the EU and the CoE are separate systems of law with separate courts: the European Court of Justice (“ECJ”) and the European Court of Human Rights (“ECHR”), respectively. Introduction, EU CHARTER OF FUNDAMENTAL RTS., http://www.eucharter.org/home.php?page_id=66 (last

    visited Jan. 25, 2011). The ECJ addresses issues related to EU law, while the ECHR addresses issues related to human rights law (essentially the Convention). Id. Therefore, this Comment focuses exclusively on ECHR law.

12. Convention for the Protection of Human Rights and Fundamental Freedoms: CETS No.: 005,

    COUNCIL OF EUR., http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=005&CM=8&DF=12/ 10/2009&CL=ENG (last visited Jan. 25, 2011).

13. Convention for the Protection of Human Rights and Fundamental Freedoms art. 10(1), opened for

    signature Nov. 4, 1950, 213 U.N.T.S. 221 (entered into force Sept. 3, 1953) [hereinafter Convention].

14. Bright, supra note 2.

    a democratic society, [1] in the interests of national security, territorial integrity or public safety, [2] for the prevention of disorder or crime, [3] for the protection of health or morals, [4] for the protection of the reputation or rights of others, [5] for preventing the disclosure of information received in confidence, or [6] for

    maintaining the authority and impartiality of the judiciary.15

    
    

    If approved by the Senate, and subsequently challenged in court on the grounds that the law infringes upon the freedom of expression, one or more of these limitations may render it either a legitimate or illegitimate piece of legislation. Moreover, even if the law is held to be illegitimate under the Convention, the margin of appreciation doctrine, which permits states to use their own discretion when “resolving the inherent conflicts between individual rights and

    national interests,”16 might provide adequate justification for the Italian

    government’s effort to muzzle the internet.17

    
    

    This Comment addresses the human rights issues presented by the Alfano Decree in the age of the internet as a medium to publish ideas and information for public consumption. Specifically, what constitutes an infringement of the fundamental human right of freedom of expression, as recognized in Article

    10(1) of the Convention?18 If an infringement exists, what constitutes a

    legitimate interference of this freedom, as recognized in Article 10(2)?19 If the infringement does not fall within one of these limitations, does it warrant an application of the margin of appreciation doctrine?20 Part I provides an

    overview of the rise of the blog and the blogger as a citizen journalist as well as a discussion of the relevant provisions of the Alfano Decree and the Italian Prime Minister’s influence on the media in the country. Part II begins by summarizing the Convention and the European Court of Human Rights (“ECHR”). Part II then utilizes the freedom of speech issue presented by the Alfano Decree to analyze ECHR case law for its interpretation of Article 10. Finally, Part III advocates against the approval of the Alfano Decree.

    
    

15. Convention, supra note 13, art. 10(2).

16. Eyal Benvenisti, Margin of Appreciation, Consensus, and Universal Standards, 31 N.Y.U. J. INT’L L.

    & POL. 843, 843–44 (1999).

17. Bright, supra note 2. See Part II.D, infra, for a discussion on the margin of appreciation doctrine.

18. See Bright, supra note 2.

19. See id.

20. See id.

    1. BACKGROUND

       
       

       1. The Rise of the Blog and the Blogger as a Citizen Journalist

          
          

          The rise of the blogosphere began in 1997 when specialty websites known as “weblogs” began to emerge on the internet.21 A weblog, or blog, is a type of website “usually maintained by an individual [or “blogger”] with regular entries of commentary, descriptions of events, or other material such as graphics or video.”22 Today, there are over 155 million identified blogs on the internet.23 Many individuals use their blogs as personal online diaries, while other bloggers use them to provide commentary or news on subjects ranging from sports and entertainment to politics.24 Consequently, blogging has started to blend with traditional media; bloggers, acting as citizen journalists, are reporting on the news without the objective filter imposed by press laws and media corporations.25 However, bloggers have been exposed to a range of legal liability due to this lack of filtering, especially to claims of defamation and libel.26 Furthermore, this lack of filtering exposes bloggers to government regimes that strive to censor and even criminally punish them for criticisms published on their blogs.27 Such is the case in Italy.

          
          

       2. The Alfano Decree and Berlusconi’s Influence Over the Italian Media

       
       

       The aim of the Alfano Decree is akin to the concept of a “right of reply.” The right of reply is defined in a recommendation made by the CoE’s Committee of Ministers to its member states as “offering a possibility to react to any information in the media presenting inaccurate facts about him or her

       
       

21. Rebecca Blood, Weblogs: A History and Perspective, REBECCA’S POCKET (Sept. 7, 2000), http://www. rebeccablood.net/essays/weblog_history.html.

22. FAQs, BLOGPULSE, http://www.blogpulse.com/about.html (last visited Oct. 16...