Police claim ‘jurisdiction problems’ hindering investigation into John Dalli poison blogs
European Commissioner says ‘nothing should get in police’s way’ to investigate source of allegations made against him.
4 September 2012, 12:00am
The investigation concerns an unnamed internet blog which Dalli reported to the police due to the contents it had published about him when his name was touted as a potential leadership rival to Lawrence Gonzi back in February 2012.
"The information-gathering in relation to investigations concerning defamation is hampered, as information held by service providers located within foreign jurisdictions is not always forthcoming," a spokesperson for the police force told MaltaToday.
"This is due to the fact that defamation may not be considered as a criminal offence in the contacted jurisdictions."
According to the police, retrieving information from foreign ISPs on the users of their servers who set up internet websites and blogs is not straightforward.
But Commissioner Dalli, who was posted to Brussels in 2009 by Lawrence Gonzi after the latter had appointed him social policy minister, is of the opinion that there's nothing that could stop the police from getting to the authors of the specific blog. "If the police really want to take action, then nothing should get in their way," Dalli told MaltaToday this week, during a visit to the island at the Brandstatter factory in Hal Far.
Back in February when Lawrence Gonzi announced he would put his eight-year leadership to the test by announcing a party leadership contest, rumour had it that Dalli - formerly Gonzi's leadership rival when Eddie Fenech stepped down in 2004 - would be putting in his candidature.
In a recent testimony Dalli gave to the PN executive in June in an internal hearing organised to hear accusations by former Nationalist MP Jeffrey Pullicino Orlando brought against party strategist Richard Cachia Caruana, the EU Commissioner claimed a particular blog had "attacked [him] personally" when rumours started being spread of his alleged candidature.
Dalli repeated his concerns in a meeting he held with Prime Minister Lawrence Gonzi after the June executive meeting.
"I went to the police to report these blogs. Around the time the blogs were published, there was also a person going around with cards in hand urging people to read these blogs," Dalli had told MaltaToday back then.
"I have an indication of who is behind these attacks, but I want the police to get to them."
This was not the first time the European Commissioner had asked the police to investigate "this particular blog".
A spokesperson for the Police Force confirmed with MaltaToday that several complaints had been raised by Dalli all referring to the same online blog. However, neither the police nor Dalli have revealed the name of the blog.
"We have received more than one complaint from Hon. Dalli in relation to alleged defamatory online blogs in the past years," the police said. "All complaints referred to the same online blog that is provided through a service provider located in the United States."
Three teams have been assigned to the police investigation: the Economic Crimes Unit, the Police Legal Office and the Cyber Crime Unit. "The assistance of several investigative units was drafted in to carry out enquiries in relation to this case," the spokesman said.
"These included the ECU, which had handled the criminal investigation mentioned in the blogs, the legal office that drafted out the necessary requests to foreign competent authorities and the CCU which carried out the technical aspects of such investigations."
But the same spokesperson claimed that the defamation investigation is "hampered" because information held by ISPs in foreign jurisdictions is not always forthcoming. "Defamation may not be considered as a criminal offence in the contacted jurisdictions."
However, IT law expert Antonio Ghio also concedes that jurisdiction problems may arise.
"Libel and defamation laws are not identical throughout the world. Such differences are even more visible when one crosses the Atlantic due to issues revolving around first amendment rights and the way in which freedom of speech is protected in the United States for example," Ghio said.
He explained that what might be defamatory, libelous and criminal in Malta may not necessarily be so in the United States or any other country.
"In practice, this means that the police authorities or courts in the US might not have the competence or the obligation to initiate parallel investigations or share information relating to a blog published through the services of an American company when the works contained in that blog do not meet the necessary requirements for a criminal defamation or libel case in that jurisdiction."
Ghio said that while blogs might fall under the remit of Malta's present defamation and libel laws, there exists no international agreement on the sharing of information relating to this specific category of cybercrime.
"In fact, the Budapest Convention on Cybercrime, to which both Malta and the US are parties, does not include any provision relating to defamation and libel," he said, adding that this was mainly due to the very different legal backgrounds that jurisdictions have towards the two issues.
Defamation carried online
Through the development of online media, many have questioned the liberty at which users could say what they like without expecting repercussions. Others - usually at the receiving end of critical comments - asked how far a blogger should be allowed to go with their comments.
But according to Ghio, police should have the authority to look into issues regarding libel and defamation committed through electronic means.
"Technology has blurred the distinction between defamation and defamatory libel but this does not mean that an act committed through electronic means - such as through blogs and forums - would not fall under one of the two categories," he said.
In Malta, case law regarding the applicability of defamation and defamatory libel laws within an electronic context - especially those committed through Web 2.0 technologies - is very limited.
The only such case that appeared before the Maltese courts was that instituted by Magistrate Consuelo Scerri Herrera against Malta Independent columnist Daphne Caruana Galizia, over her allegations on Scerri Herrera's private life which she published on her personal blog.
However, the case never came to a close after the Magistrate asked for the criminal libel to be dropped after the blogger admitted that she had not verified the facts before writing.
But according to Ghio, if one had to look at the definitions contained in the Press Act, an argument could be built that anything contained in a blog should still be considered as "printed matter".
The law defines 'printed material' as including "any record, tape, film or other means whereby words or visual images may be heard, perceived or reproduced".
"Surely, a blog would be a means which contains words or images that can be at least reproduced," Ghio said.
He however points out that while all the legal defenses that can be raised by the defendant in a traditional case of defamation and defamatory libel would still be available to the defendant in an online scenario, identifying the identity of the real author online could be problematic.
"Undoubtedly, technology provides various tools and mechanisms by which the identity of the real author can be cloaked. This makes it more difficult for the prosecution to discover or prove in a court of law the actual identity of the perpetrator," Ghio said.
In another case related to social media, the police managed to prosecute a Facebook user for posting a comment in April 2010 where he said he wished someone would shoot the Pope - who visited Malta that year - in the hands, the feet and in his side to mimic the wounds of the Christ. The joke turned serious when a court gave the 24-year-old man a suspended sentence and €500 fine.
Miriam Dalli graduated in communications studies from the University of ...
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