The answer may look like “no”, but the Law builds a more detailed scheme. Truth is not, by itself and in every case, a defence. Article 127 of the Criminal Code subjects proof to specific conditions.
The provision: Article 127
“(1) Where an attributed act which constitutes an offence is proved, no penalty shall be imposed on the person. Where a final judgment of conviction is given in respect of the person insulted on account of that offence, the attribution shall be deemed proved. In other cases, acceptance of a request to prove the attribution depends on there being a public interest in ascertaining whether the attributed act is true, or on the complainant consenting to proof.
(2) Where a person is insulted by reference to an act that has been proved, a penalty shall be imposed.”
Three limits
| Limit | Meaning | What it means for journalism |
|---|---|---|
| The attribution must concern an act constituting an offence | Proof is not available for an attribution that does not constitute an offence | Moral or professional attributions that are not offences do not enjoy this protection |
| The request to prove must be accepted | Absent a final conviction, acceptance depends on public interest or the complainant’s consent | The criterion to rely on in journalism is public interest |
| There must be no descent into reviling | Art. 127/2: insulting by reference to a proved act attracts a penalty | A true fact plus an abusive epithet still attracts liability |
Where there is a final conviction
This is the strongest case: where a final judgment of conviction has been given against the person insulted on account of the offence, the attribution is deemed proved as a matter of law. No separate public interest is then required for the request to prove to be accepted.
The public interest criterion
Absent a final conviction, acceptance of the request to prove depends on there being a public interest in ascertaining the truth of the attributed act, or on the complainant consenting to proof. The second is rare in journalism; the criterion to rely on is public interest.
Public interest is also a defence in private law. Under Article 24/2 of the Civil Code an attack on personality rights may be justified by a “superior private or public interest”.
Does truth also exclude damages?
Criminal and civil liability are assessed separately. That a story is true substantially reduces but does not entirely remove the risk of damages: where a true fact falls within private life, or where its presentation is humiliating, an argument of infringement of personality rights remains (Civil Code Art. 24; Code of Obligations Art. 58).
The protective provision
Article 218: “However, expressions of opinion that do not exceed the limits of reporting and are made for the purpose of criticism shall not constitute an offence.” That provision keeps assessments containing no attribution of fact outside the debate about proof altogether.
Practical conclusions
- Document factual assertions and keep the documents.
- Distinguish whether the assertion concerns an act constituting an offence or some other fact.
- Make the public interest visible within the story so that the reason for publication is apparent.
- Do not use humiliating epithets even where the fact is true (Art. 127/2).
- Obtain the response of the person concerned and include it.
- Where there is a final conviction, refer to it expressly in the story.
The criticism and insult distinction is covered in the criticism guide and verification duties in the verification guide.