Press charges: a new defamation Bill ignites the debate on journalism

For the mainstream media and print establishment, the upshot of a new media and defamation Bill that would supplant the Press Act, is the introduction of a mediation stage and preliminary hearing for court defamation cases. With libel damages mounting a real challenge to the Fourth Estate, the removal of criminal libel together with the preliminary hearing – a faster way for the plaintiffs and defendants to come to a resolution, even under pain of a €1,000 fine – would go a long way to protect journalism from the threats of vexatious and frivolous libels.

The debate so far, has been nothing short of fiery.

Chris Cardona’s and Joe Gerada’s precautionary warrants for some €46,000 in potential libel damages over Daphne Caruana Galizia’s claims that the two men were witnessed inside a German brothel, prompted the Nationalist Party to present a private member’s bill to exempt the Press Act from precautionary warrants. The Labour government followed suit, finally taking the media and defamation bill off its shelf.

But apart from removing precautionary warrants for those charged with defamation, the new Bill is also attempting to bring the online world at par with the print media, the usual defendants in libel cases. Controversially, the Bill is also hiking up the maximum libel damages in civil cases, to €20,000, prompting such cases to be heard in the upper courts rather than in a Court of Magistrates.

Proportionate? Probably this sop for the removal of criminal libel is anything but.

Shifting the onus on plaintiffs

Arguably the Bill is a step in the right direction for its proposal to introduce a preliminary hearing during which parties can either agree to come to a resolution, or allow the judge to determine the case summarily and force the defendant to publish an apology under pain of a €1,000 fine. Even the maximum damages are eventually reduced to €7,000, if prior to the actual commencement of the proceedings, the defendant would have already apologised and published an unreserved correction of the defamatory article.

However, the burden of proof remains squarely on the defendant and does not place a proportionate burden on the plaintiff. In various US states, there are several “privileges” that can get a defamation case dismissed without proceeding to trial, because plaintiffs have to prove they have a real basis to proceed with a challenge to somebody’s freedom of expression.

Even in the event that a preliminary hearing does not achieve a resolution between the two parties, the eventual maximum €20,000 damages does little to reassure the general public that a defamation case achieves its aim. If ultimately, journalists and publishers stand to lose such large sums of money in a court case, this alone will serve as a chilling effect on the kind of information and news that will be pursued.

Confidentiality of sources: a professional privilege?

In this part of the law, there will be some considerable debate as to whether we have arrived at the closest definition of a journalist or not.

The media bill proposes that only habitually full-time and part-time journalists, or those whose editors and publishers are registered with the media registrar – whether print or online – will be entitled to claim confidentiality of sources as a defence in court. In the Press Act, confidentiality of sources is listed under the heading of “journalistic freedoms” but specifically unconnected to the actual occupation of the person.  

Now there are of course journalists whose livelihood depends on journalism, but there are also those who in the course of their lives might carry out “an act of journalism”, by becoming witnesses or reporters of an event in print or online or on Facebook – and both categories of person could end up being sued for defamation in a court of law.

Now just as the freedom of expression is not an absolute right, and carries its limitations, so does the protection of journalists’ sources (which at law is not specifically a right) carry limitations: that is, a court of law can order that the disclosure is necessary in a democratic society because of national security, public safety or the prevention of a crime and to protect the interests of justice.

What is unclear is whether, in a court of law, a defendant could be prevented from keeping sources confidential even if they are not journalists (they might be casual bloggers stumbling on a scoop, for example).

The European Court of Human Rights says (Goodwin vs UK) that national courts have a margin of appreciation in determining the necessity of ordering the disclosure of sources, and whether this is proportionate to the legitimate aim pursued. Ultimately, the ECHR would seek to tip the balance in favour of the interest of a democratic society in securing a free press.

Can we argue that bloggers, who might not depend on journalism for their livelihood, but who might produce a report, factually based on sources, should not be allowed to avail themselves of the same defence? Equally, we could argue that even their sources could be deterred from assisting new media or other journalists not part of “registered” legacy media.

In 2011, the Council of Europe’s parliamentary assembly – whose resolutions also serve to guide in part the ECHR’s interpretation of Convention rights – said that the right of journalists not to disclose their sources of information is a “professional privilege”, intended to encourage sources to provide journalists with important information which they would not give without a commitment to confidentiality. “The same relationship of trust does not exist with regard to non-journalists, such as individuals with their own website or web blog. Therefore, non-journalists cannot benefit from the right of journalists not to reveal their sources.”

So how should journalists be recognised?

Registration misinterpretation

The Press Act already obliges editors and publishers to register their identities with the Department of Information. The new media bill is now proposing that editors of news websites, or websites “related to news and current affairs” also register their names with the media registrar.

The debate on this registration clause is already conflated with misinterpretation. Critics are claiming that this will force bloggers to register their websites, an interpretation mainly pushed by the Malta IT Law Association (MITLA) and further reinforced by the Nationalist Party. Other lawyers who have spoken out on this provision say it changes little from the current practice to register editors of print titles.

But what does registration serve for? In the courts of law, the DOI is usually employed to confirm the responsibility of an editor or publisher that is being sued for defamation by verifying the defendant’s name with its own register.

In reality, even if a blogger is not registered with the DOI, they can still be physically brought to court if they are identifiable in the first place, as happened with Daphne Caruana Galizia in her numerous court libels, and even with those sued for libel for comments they placed on Facebook or for letters they had published. So registration seems to fulfill no meaningful purpose other than to establish titular responsibility.

Arguably, this provision in the media bill is creating confusion, justifiably, especially with the vague definition it has given to “website” and the €1,000 fine it contemplates for those who do not register themselves as editors (bloggers who single-handedly pen their opinions on their personal blog would ask themselves whether they are their own editors).

So we should ask ourselves whether registration is necessary, and whether it can be reformed to a more fruitful exercise. A bone of contention for the established press is the way the DOI issues press cards to non-journalists on the mere recommendation of an editor or publisher: a notorious example is the temporary press card issued to Nationalist MP Jeffrey Pullicino Orlando during the 2008 election so that he could face down Alfred Sant during a televised debate for the Broadcasting Authority.

Surely it is this practice that has to change.

What is needed is to introduce the Institute of Maltese Journalists as a vetting partner, to assess the various levels of journalists: those who are on a full-time or part-time basis with a media organisation, those who are freelancers but depend on journalism as their main income, and bloggers, columnists or PR workers who might have other full-time jobs and do not depend on journalism for their livelihood. In each of these cases, a press card – often used in Malta solely for access to official events and institutions such as the House of Representatives – would determine the level of access than can be enjoyed by the journalist according to this status.

This kind of registration is of course unconnected to the media bill’s attempt to establish responsibility for defamation for the online world. But in attempting to regulate the fluid and often un-categorisable internet, the law could end up punishing harmless actors. Undoubtedly, this part of the law needs a serious rethink.

Defaming the dead

Much will also be said about the media bill’s introduction of a controversial right for injured parties to bring defamation proceedings when they feel their dead relatives have been defamed. The bill controversially would allow this for those heirs of deceased persons against whom the defamatory statement was made within 10 years of the death of the person allegedly defamed.

Ironically, while the media bill introduces no obligation for plaintiffs to prove to a court they have a prima facie case for defamation – where they would have to prove that defamation has indeed occurred – on deceased persons, heirs would have to show that their own reputation also was harmed or has caused moral suffering.

As the saying goes, “you can’t libel the dead”. So should that mean that one could say anything one wanted about someone who had died? In one case in 1994, the son of the late Labour prime minister Sir Paul Boffa had brought defamation proceedings against a newspaper columnist, John A. Mizzi, who had opined that Boffa had personally shown an interest in seeing part of the Xemxija coastline built up. The statement itself was not based on provable fact, but Sir Paul had also been dead for over 30 years.

In 2014, the European Court of Human Rights recognised this right somewhat. The case involved Vladlen Putistin, whose father was involved in the so-called Death Match in the second world war, when a team of German military players took on former professional footballers from Dynamo Kiev and Lokomotiv Kiev in 1942. The match became notorious because it was reported that some Soviet players were executed after they beat the Germans. The story was the inspiration for the 1981 film Escape to Victory, starring Michael Caine and Sylvester Stallone.

Putistin, whose father played in the Death Match, took a claim to the ECHR over a report of the match that suggested his late father was a Nazi collaborator. The court rejected his claim that the report breached his right to a private and family life (Article 8), but only because he and his father were not significantly identified in the report – in theory it said he could have succeeded in a claim on this basis. The ECHR held that applicant’s rights were “marginally affected and only in an indirect manner”, but they did not discount in theory the potential for a claim on this basis to succeed.

Generally speaking, a journalist sued for the defamation of a dead person would have to employ truth as the absolute defence to a defamation claim. The more serious or malicious the defamatory publications are, the more difficult it is for the defendant to vindicate them.

But in the UK, an attempt was made to insert a provision in the Defamation Act 2013 allowing libel actions by relatives of the dead, but it was defeated. The Maltese bill now would provide this kind of protection for the relatives of dead and usually controversial figures.

Those watching how the media bill will evolve over the next months will probably be interested to gauge whether there is indeed a public appetite for this kind of defamation claim. The media will undoubtedly oppose such a gratuitous allowance.

IT law association against registration

The MITLA says registration of website editors would be a direct curtailment to freedom of speech online. “The Internet is a bastion of activity and free expression – registration will put this under government control,” MITLA claims – although this hardly could be said of print editors who are registered with the DOI.

MITLA insists that printed newspapers could not be placed at par with online publications “without any appreciation of the realities that technology and the Internet, as well as the rights and freedoms associated with their use.”

It has also said the minister retains power in the media Bill to make provisions for the removal of online content following a court decision, without a restriction found in UK law that a draft of the instrument is approved by parliamentary resolution.

MITLA said MPs should discuss the Digital Rights Bill, amending the Constitution, presented in 2014 in order to guarantee that the proposed rights of right to informational access, informational freedom and digital informational self-determination find their place as enforceable rights in our Constitution.

The Media and Defamation Bill

• New definitions

New or updated definitions have been added for author, broadcast, defamation (libel and slander), editor, printed words – which now include visual images that can be heard, perceived or reproduced and uploaded on a website – publication, and website, which now is defined as “any web-based service relating to news or current affairs that operates from Malta or in respect of which editorial decisions are taken in Malta.”

• What constitutes libel?

Defamation must “cause serious harm or are likely to seriously harm the reputation” of someone who makes the claim. Gone are the Press Act’s provisions for “obscene libel” (public morals and decency), malicious news that “alarms” public opinion or disturbs the peace and creates “commotion among certain classes of people”.

Criminal libel will be abolished but criminal cases ongoing when the new law comes into force, will still proceed, and civil cases will also proceed under the old fines if they were beyond their second hearing.

• Mediation before court

When an action for defamation is filed, the Court will appoint a preliminary hearing within 20 days. During this hearing, the Court will decide whether it can decide summarily or allow the parties to reach an agreement trough an apology, with a maximum possible fine of €1,000.

In assessing the sum, the court will consider the gravity and extent of the defamation, whether the defendant exercised due diligence before publishing the defamatory matter, and whether the defendant made or offered an apology or public a clarification.

• Apology before proceedings

If the defendant provided an apology or unreserved correction before the filing of the defamation case, moral damages for any ensuing court case will not be more than €7,000.

• Higher moral damages in court defamation cases

The new moral damages in a court of law for defamation will now climb to €20,000 over the current €11,000. An editor who refuses to publish a right of reply is liable to a €2,000 fine.

• Incitement against President: fines increased

Under the Press Act, incitement to take away the life of the President is liable to a nine-year prison term and €1,164 fine: this has been increased to €5,000.

• Defending oneself against a libel claim

Defendants will have to show that what they said or wrote “is substantially true” and even in cases where other statements they made were not “substantially true”, the defence still stands if such statements do not seriously harm the claimant’s reputation.

Honest opinion is defined as a statement of opinion, for which an honest person could have held such an opinion on the basis of “any fact existing at the time when the statement was published, and anything asserted to be a fact in a privileged statement published before.”

• Has a privacy loophole been introduced?

Like the Press Act, a public person retains the definitions attributed in Article 12 –  public officers, candidates for public officer, political activists, those in a profession, trade or art, those in a position of trust.

In the Press Act, the truth of the matters charged “may not be enquired into if such matters refer to the domestic life of the aggrieved party”.

In the new bill, this has been changed to matters that “refer to the private life of the claimant and the facts alleged have no significant bearing on the exercise of that person’s public functions” – unless the public interest element is proved in court.

• Protection of sources

The Press Act safeguards the confidentiality of sources, although this is not an absolute right and has its own limitations in serious national interest cases. Under the new media bill, the protection of sources will only apply in the case of editors, publishers, broadcasting services or websites registered with the media registrar and then only if the author habitually exercises the profession of journalist on a full-time or part-time basis.

This is perhaps the closest the law gets to a definition of a media worker in terms of the protection of sources.

• Removal of precautionary warrants

The new media bill removes the power to issue precautionary warrants against any person for damages for libel or defamation.

• Defamation of deceased persons

The new bill introduced an action for defamation of deceased persons if the defamatory statement is made within 10 years of their death and the action is filed by a parent, sibling, child or heir who must show that their “own reputation was seriously harmed or is likely to be seriously harmed by the statement or that the statement is such as would reasonably cause serious moral suffering to claimant.”

• Comment boards on websites

Editors can defend themselves from libel from comments if they show they are not persons who posted the statement on the website. Such a defence is defeated if claimants gave a notice to the editor on the statement, and the editor failed to respond to the complaint. Editors who moderate the statements can still avail themselves of this defence.

• Removal order

A court that gives a decision on a defamation case can order the operator or editor of a website to remove the statement that is defamatory, or stop the distribution of material containing the statement.