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7 August 2012, 12:00am
"We experienced one of the most unfair decisions ever to be made in the Maltese courts: we were fined €18,000 for a story which we believe we were justified in reporting," Balzan said.
"We will fight this judgment all the way because we are certain that the court decisions will have an impact on the free press. I have no doubt that if we do not fight these decisions, the future of the press as we know it is over."
Donate to our online libel fund using PayPal, a safe way to debit your credit card and you recieve a free copy of Saviour Balzan's upcoming publication if you donate €100 or more. Donations by cheque can be made out to Mediatoday, and mailed to Mediatoday Libel Fund, Mediatoday, Vjal ir-Rihan, San Gwann SGN9016
Why was MaltaToday sued?
MaltaToday ran a series of stories into the lease of government land in Tigné, Sliema for the construction of the Jumbo Lido, revealing that government had waived Lm100,000 (€240,000) in rents due from VAB Company Ltd - a company in which Fenech and his father held ownership - because the company "had no other assets from where to pay the arrears".
According to the spokesperson of the then home affairs minister Tonio Borg (today Deputy Prime Minister) who was responsible for lands, the government had confirmed that when it waived the due rents for the leased land, it was unaware VAB was concurrently claiming €138,000 in rents from the third party that was renting Jumbo Lido, with whom VAB had a management agreement. The sentence does not dispute any of these facts but points out that the assertion that Peter Fenech owed arrears to the government while claiming money from a third person, were incorrect.
The magistrate reached this conclusion on the basis of the fact that Fenech was a director and the owner of one share in VAB Company Ltd and not the owner of the company, which belongs to Peter Fenech's father Frank, who owned the rest of the shares.
"Certainly, the journalist had no right to reach the conclusion that because the plaintiff (Fenech) was a director of the company, the company is his" - the court said.
Peter Fenech had refused to talk to MaltaToday and to answer questions sent by e-mail before the story was published by MaltaToday. But in the sentence the judge insists that the journalist "intentionally" gave incorrect information with the sole motive of defaming the plaintiff.
If the newspaper loses a libel suit, does this not mean it was in the wrong?
MaltaToday is appealing this judgement, because it believes too much attention was placed on the fact that Peter Fenech, the company director, had just 1% of all shares - the rest being owned by his father - and was therefore not sufficiently worthy of being the centre of MaltaToday's journalistic interest. Indeed, a worrying precedent was set in court where the magistrate said that Fenech was not to be considered a public person.
As explained in the story and in court, Fenech happens to be a politically-appointed chairman of a national theatre, the Mediterranean Conference Centre.
MaltaToday put under the scrutiny the sagacity of a government decision to waive all the rent that his company VAB Ltd owed to the state for leasing the Jumbo Lido site in Sliema; when VAB was at the same time recouping a considerable sum of money from third-party sub-lessors who ran the Jumbo Lido. The government explanation was that VAB was not in a financial position to pay its rents - a very questionable reasoning.
In a nutshell, MaltaToday always asked: why did the government waive the rent it was due from VAB, when VAB was demanding a considerable sum from its sub-lessors?
Is €18,000 too much to fine newspapers?
Contrary to public perceptions, newspapers' circulation does not form the bulk of revenue for media houses, which depend on advertising to make ends meet. In the Lombardo case, the European Court described the Lm2,000 in damages inflicted on the councillors and newspaper editor as having a "chilling effect" which "works to the detriment of society" because it discourages the councillors from making statements critical of the local council's policies in the future.
The three fines - €5,000, €10,000 and €3,000 - are not only disproportionate but the ruling failed to take into consideration the facts of the case as presented to the courts over the last six years. There is a serious attempt to ignore or minimise the role of Peter Fenech, an advocate and a well-known PN political activist, in the negotiations that led to the rent owed to government by a company where he was a registered director, company secretary and a minority shareholder, to be rescinded.
It is also evident that evidence that showed the participation of Peter Fenech in the whole episode were not taken into consideration. He was director, company secretary and a minority shareholder of the company in question.
What happens when a libel suit is appealed?
An appeals judged is asked to review the decision taken by the Magistrates' Court - the appeals decision can be appealed again in the Constitutional court and taken to the European Court of Human Rights.
Has a libel suit ever been taken to the European Court of Human Rights?
In 2007, in the Lombardo case, three PN councillors in Fgura alleged in a letter to in PN newspaper In-Nazzjon, that the local council had not carried out public consultation on the Hompesch road project. The council sued them for libel, won the case, and the councillors had their appeal defeated at all stages right up to the Constitutional Court.
The European Court's job was not to determine whether the Maltese courts 'interfered' with their right to freedom of expression. That right is itself limited by the European Convention of Human Rights and Fundamental Freedoms to protect the reputation and rights of others, apart from other limitations.
In this case, the issue was whether the courts were right in protecting the reputation of the Fgura council. Was their interference "necessary in a democratic society"? Did it correspond to a "pressing social need"?
The verdict was no. Elected representatives, the Court said, have to expect closer scrutiny of their deeds and should be more tolerant of criticism. The Court's belief was that councillors, or journalists for that matter, should enjoy a "wide freedom to criticise the actions of a local authority, even where the statements made may lack a clear basis in fact" - because the subject concerned is of public interest.