New media bill: criminal libel goes, but insults are added

An insult or slur will remain a costly endeavour for anyone who employs offence in an argument or protest – their targets will remain empowered by the Criminal Code to file a police complaint and seek redress in a court of law.

It is this part of Article 252 in the Criminal Code that will stay in force despite the government’s claim that it is empowering freedom of expression by removing criminal libel.

Article 252 says that anyone who damages the reputation of a person by words, gestures, or by writing or drawing, is liable to a maximum three-month imprisonment or a fine.

Under the proposed media bill, the law proposes to remove “writing or drawing” – so as to repeal criminal libel – but to substitute this by “insults or in any other matter”.

Justice minister Owen Bonnici has confirmed that under the proposed law, which will reform the Press Act, which also regulates defamation proceedings in civil claims, the removal of criminal libel will strictly refer to the offence specific to the press.

“The new Media and Defamation Act will remove criminal libel from our statute books. Offences under general criminal law, which are applicable to everyone, are not press offences. One cannot remove ordinary offences against the person, such as the one preventing, for instance, two persons from getting involved in verbal insults against each other in the streets,” Bonnici said.

The minister said the amendments remove the specific reference to defamation by writing, so that defamation through the media is regulated through civil rather than criminal proceedings.

A legal source told MaltaToday that the Court will have to understand the spirit of the legislator in interpreting the amendment.

“The court would have to certainly make a difference between a defamation that takes place on the basis of insults that are based on lies, and therefore cannot be proved in a court of law, and insults whose subjective nature – for example calling someone an idiot – might be less controversial.”

Indeed, Article 252 continues by saying in sub-article 2, that where the defamation consists of “vague expressions or indeterminate reproaches, or in words or acts which are merely indecent, the offender shall be liable to the punishments established for contraventions” – that is, one that merits a lesser form of punishment than imprisonment.

However, the new media bill adds a new dimension to this kind of insult, by allowing criminal action to be taken against an insult if the defamation is directed at a family member of the aggrieved party when this “affects the reputation of the aggrieved party”.

The new law will also increase the maximum payable to €700 for the use of insulting words or gestures in contempt of the President of the Republic.

Insults are already regulated by the Criminal Code, as a contravention that carries a fine if the insult is carried “beyond the limit warranted by provocation”. In the case of insults, defamation or threat, the court in passing sentence may allow the offender, in order that he may be exempted from the whole or part of the punishment, to retract his words or to apologise in open court.

In 2014, a court of appeal overturned a decision by the Criminal Court that found a 16-year-old Moviment Graffitti activist guilty of calling circus organiser Silvio Zammit a “clown” (pulcinell) during a protest against animal circuses back in 2010.

The police had arraigned two youths, accusing them of defaming Zammit, they were handed a six-month conditional discharge. 

In his appeal decision, Mr Justice Lawrence Quintano said the Maltese courts had previously excused the use of words much worse than ‘clown’ during protests. “In an environment of a protest where participants voice their disapproval for something, the use of the word ‘clown’ should be accepted in a democratic society.”

Criminalising insults: always problematic

This is most certainly not a debate that is thorny in Malta, where the pernicious and touchy abound in public life. In the UK, the Public Order Act’s Section Five permits the arrest of any protestor who causes “alarm or distress”. Ludicrous cases abound: in one case the police arrested a student who held up a sign stating Scientology was a cult – what we might say is a matter of opinion. Even more laughable: a man called Sam Brown asked a police officer in the UK ‘Excuse me, do you realise your horse is gay?’ and was taken to court for refusing to pay an £80 fine. 

Protest is always directed at an audience that is not sympathetic to your cause, so insult is clearly going to be perceived by those who do not support the protest. This is why the words of Judge Lawrence Quintano matters: “In an environment of a protest where participants voice their disapproval for something, the use of the word ‘clown’ should be accepted in a democratic society.”

Even better would be the words of Lord Justice Sedley (Redmond-Bate v DPP): “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”

The great gay rights and civil society activist and peace campaigner Peter Tatchell is one such critic of the criminalisation of insults.

“If we accept that abuse or insults resulting in likely alarm or distress should be a crime, we risk limiting free and open debate and criminalising dissenting opinions and alternative lifestyles that some very conservative people may find offensive and upsetting,” he wrote on the UK’s Public Order Act.

“The right to mock, ridicule and satirise ideas, opinions, people and institutions is put in jeopardy. Section 5 can, in theory, be used to criminalise almost any words, actions or images, if someone (anyone) is likely to be alarmed or distressed by them.”

Clearly, civilised society requires that people are not gratuitously offensive to each other, but being provocative is in itself a great freedom that can move people to take action in the best interest of others. Bigoted opinions should always be challenged, but insults can also be harmless incidents which – when criminalised – lead to futile criminal complaints and prosecutions. It should be explicit threats, harassment, and incitements to violence that should be criminalised.