A license which is issued can also be withdrawn, reads the so-called McBride report at p.237, a piece of history published in 1980 that came out of the debate around the ‘New World Information and Communication Order’, or NWICO, in the 70-80’s.
Such remark concerned the issue of licensing journalism some countries were attempting to push through as an eminent feature of NWICO – especially after a symposium in Tunis in 1976 – which was promptly abandoned by UNESCO.
While some viewed licensing as a pre-requisite to apply protection programs to journalists – who are subject to constant threats, harassment, beating, forced disappearance (and non-reappearance), murder, and so on – these mechanisms, whose effectiveness in enhancing protection was uncertain at best, were dismissed by UNESCO on grounds of harming journalists’ freedom and independence.
Behind the curtain, the clash lied between Third World authoritarian regimes and the West, with the former complaining news monopoly was in the hands of 4 Western press agencies that governed the flow of information, such that their countries’ news was dispatched through the filter of Western eyes.
Licensing journalism is a matter of national legislation, and of course there are countries featuring just that, however, doing journalism is something else, it’s a matter of civil rights that necessarily surpasses the local dimension.
As a matter fact, the intense debate around NWICO produced more doubts than certainties, among which whether the very definition of who and what a journalist is can become the source of undue restrictions; however, one thing has always been crystal clear, that licensing could not come as far as preventing free speech.
In other words, within UNESCO debates, in case licensing became an excuse to prevent people from publishing news or commenting on them, no journalist-protection stance could justify it anymore; licensing could perhaps be supported, but only to the extent people remained free to report news.
This red line was recently crossed in a modern and mature European democracy naming itself as the oldest republic in the world, the Republic of San Marino; nonetheless, a legal case has brought the country back to its sound principles, at least for now.
The case of San Marino v. Marco Severini, criminal proceeding No. 632.2018, which I successfully litigated yesterday, was held on charges of unlicensed practice of a profession, an old offence provided by art. 385 of the Criminal Code, read in conjunction with the law regulating the licensing of professional journalism.
Giornalesm.com, most read online news portal of San Marino, run by Severini, is not registered nor licensed under any regulation. On top of that, Mr. Severini in 2018 decided to return his badge as a licensed journalist (and made the news public) to preserve his independence to the highest possible extent.
The state prosecutor sought yesterday a jail sentence of 1 month for Marco.
At the end of the day, the trial judge, Italian law professor Vico Valentini, ruled by acquitting Marco Severini in full, with the first ever judgment on a case for clandestine journalism in San Marino.
The trial started and closed yesterday as I waived any and all procedural claims demanding an immediate judgment on the merits. That was Mr. Valentini’s only hearing, as the case was previously assigned to other judges in their role of Investigating Judges (San Marino has an inquisitorial system).
As soon as these charges appeared in 2019, we strongly fought them by holding no law on licensing journalism could ever restrict the right of people to free speech, including news reporting, be they in possession of a journalist’s badge or not.
The one and only court of San Marino broke on the issue, with some judges upholding this argument while others incredibly dismissing it and sending Severini to trial for ‘clandestine journalism’. In December 2019, the case had been terminated at the investigation stage, however the state prosecutor blocked the dismissal, and the case was reassigned to another Investigating Judge who filed an indictment.
Now that a judgment is out, Severini has at least a stronger safeguard to keep doing what he does, that is investigative journalism, often disclosing abuses and corruption in San Marino; nonetheless, the battle is not over, with other cases in the pipeline where indictments could be filed against him for similar charges.
Whatever the outcome will ultimately be for Marco, the dangers are laid bare of how the absence of a cultural background in fundamental rights affects the destiny of a whole country: had not Severini fought so hard, had not the case been assigned to a law professor that upheld my legal arguments, the rule would by now be established that none could report news unless they had a journalist’s badge, in San Marino.
Can democracy and the rule of law be wiped by mistake?
Probably not upon this case taken alone, but this is an example of how suffocating democracy is easier than it may appear; a trick could devastate the free speech if left unchecked, which reminds us all of how delicate the overall legal order and the complex of fundamental rights are.
About the author
Achille Campagna is an international lawyer based in San Marino, specializing in ICL, IHL, fundamental and civil rights.
