Court hears case of only Maltese journalist to have been jailed for libel

The Constitutional Court heard final submissions in two linked appeals from a judgment last October, which awarded €5,000 in compensation to the former editor of In-Niggieza who had been jailed for criminal libel in the 1970s.

The case dates back 41 years to an article published in the Maltese-language newspaper which alleged that a minister had an extramarital relationship which had resulted in a ministry worker falling pregnant.

On 20 September 1973, criminal procedures were filed against Joseph Calleja, then editor of the newspaper ‘In-Niggieza’ over an article titled "Pudina mis-Sultana a' la' Cassar" which drew the ire of the employment minister at the time, Joseph Cassar.

The former minister had sued Calleja, as well as the paper's publisher for criminal libel due to the fact that the article asserted that Cassar had impregnated an unmarried woman who worked in his ministry. The allegations were later shown to be untrue.

Calleja was jailed for three months and fined LM50 after renouncing the allegations in court, apologising and offering to allow the injured party to publish any statement by way of reply. 

He had left the journalistic profession after serving the sentence.

40 years later, however, the former editor had filed a constitutional lawsuit, asking the court to declare that the criminal procedures and the jail term had breached his fundamental and constitutional rights, also requesting compensation. Calleja claimed to have written the article based on information he received from several trusted sources. The first court had said it recognised the press' watchdog role and agreed that journalists must be free to work without interference. Quoting the European Court of Human Rights' doctrine of the chilling effect of criminal sanctions on the exercise of journalistic enterprise, the court said it felt that the penalty inflicted on the journalist was disproportionate and not reasonably justifiable in a democratic society.

While the court was uncompromising in its criticism of the former editor's irresponsible and unethical story, saying that it was not acceptable to hide behind the freedom of the press to intentionally tarnish the reputations of others, the judge said that criminal proceedings should no longer be applicable in such cases. Both parties had appealed from that sentence – Calleja's due to the low amount of compensation awarded and the Attorney General's because he disagreed with the conclusion that Calleja had not acted in bad faith.

Lawyer Christian Falzon Scerri from the office of the Attorney General said that the AG also disagreed with the first court about the compensation awarded. The €5,000 compensation he was given gave the wrong message as it “awarded him for writing imprudently and reporting unproven allegations and the amount was also exaggerated,” the lawyer said.

“When one reads the sentence of the criminal case, the court had effectively found criminal intent on the part of the author. This is what had led it to sentence the man to prison.” That court had made a distinction between Calleja and his co-accused, only fining the other man LM10, the lawyer said. Libel offences did not require proof of the intent to defame, but this was inferred from the words used and the impact that this would have on the average reader, it was argued.

The first court had quoted European judgments on freedom of expression and journalistic endeavour, but these sentences were handed down decades after the 1973 judgment. At the time, the European Convention on Human Rights had not even been a part of Maltese law, Falzon Scerri said.

The legal interpretation had changed over time, so one could not take today's interpretation and apply it retrospectively, but rather one had to see things in the context of the societal norms of the time. “In the 1970s, adultery was a crime. The protection of the family was of utmost importance to Maltese society at the time.”

The author had known that his story would hurt the subject and had indicated his awareness of this. The story had hinted that the minister and his wife had been unable to conceive and a subsequent article had drawn parallels between the fact that the minister was a labour minister and the fact that labour is the pain of childbirth, the lawyer said.

'We are here for legal and not moral arguments'

Calleja's lawyer John Bonello also made his final submissions today. “In the first lecture at law school you are taught to distinguish between law and morals. With all due respect we are here for the law and not moral argument.” The AG was failing to mention that the whole case was not based on the finding of guilt in 1979, but whether in the circumstances of libel and the absence of a threat to national security whether there could justifiably result in a prison sentence.

Bonello pointed out that Calleja remains the only journalist to have been jailed since Malta's independence. “How could the First Hall of the Civil Court decide this case, the first time a prison sentence was visited on a journalist, if not by making reference to Strasbourg's jurisprudence? The article of the Constitution on which this is based has not been changed.”

The lawyer did not contest that guilt was found correctly, pointing out that Calleja had even apologised in court. “But what we are arguing is that a prison sentence is a punishment that has never been given before or since. The law is the same as it was at the time.”

The question was whether the punishment was excessive, the lawyer said. The punishment had caused a chilling effect and was, in itself, a breach of Calleja's rights.

The European court had found a breach in a foreign case where a journalist had been given a suspended sentence and the compensation awarded had been much higher than €5,000. When one takes the compensation awarded in the light of other similar cases locally and abroad the award was “extremely low.” In addition, the man's rights had not been breached simply because he was jailed or because he had been awarded a paltry sum, but also because had been ordered to pay part of the costs.

The 40-year wait did not breach any procedure because human rights cases are not limited by time.

Chief Justice Silvio Camilleri, judge Giannino Caruana Demajo and judge Noel Cuschieri will deliver their final judgment in May.