Time to reform press laws

There can be no doubt that libel suits are a weapon in the hands of the powerful

16 February 2017, 7:25am
The problem with the Cardona allegations is not that they were made... but that they could have been made without proof
The problem with the Cardona allegations is not that they were made... but that they could have been made without proof
At the time of going to print on Tuesday evening, MaltaToday learnt that the government was now reacting to the Opposition’s proposal to remove garnishee orders against the press, with a commendable wholesale revamp of the Press Act that included the abolition of criminal libel.

Hours before, this newspaper’s editors were discussing how the furore over a garnishee order slapped by Economy Minister Chris Cardona on Malta Independent columnist Daphne Caruana Galizia has once again cast the spotlight on Malta’s archaic press legislation. But already, the opportunity for a long overdue reform seems to have misfired. 

The issue concerning Cardona’s precautionary warrant is indeed a serious matter... but, strictly speaking, the two issues are distinct and must be tackled separately.

In itself, the concept of a precautionary warrant is not necessarily a bad thing. In commercial litigations it is often necessary to prevent the liquidation of assets to avoid paying legitimate debts. It has uses in criminal scenarios, too.

The problem concerns its applicability to a libel suit. In this case, there isn’t an actual debt to be paid by either party... and will not be any until a verdict is reached, and the defendant found guilty. This clearly violates the presumption of innocence.

It must be said, too, that the decision to resort to such drastic action smacks of totalitarianism. Aggrieved though Cardona may feel, he must leave room for the fact that as a public person, he is under greater scrutiny from the press (though that same press must exercise its own responsibility too), and be mindful that he represents a government committed to the protection of human rights. He has a responsibility to reassure the public that his ultimate aim is justice... not personal revenge.

But the real issue at stake here concerns criminal libel, not precautionary warrants. 

As with electoral reform and other grand projects (which are all supposed to be under review by a largely forgotten Constitutional reform exercise) the abolition of criminal libel is an issue which occasionally rears its head... only to quickly submerge and fade out of public discussion.

In 2015, the Labour government was contemplating a new package of laws that would allow injured parties to seek redress through mediation instead of court action. According to these proposals, criminal libel would be abolished. Civil libel would remain in force, subject to the failure of mediation attempts.

On Tuesday, this entire exercise was resurrected.

Opposition leader Simon Busuttil had also called for the abolition of criminal libel in 2015. “A modern democracy cannot allow for the possibility of being thrown in jail when expressing their right to freedom of expression,” he underlined.

Yet nowhere is the abolition of criminal libel mentioned in the PN's private members’ bill this week. It seems the Opposition’s concern is now more the protection of one blogger’s private assets, than the rights of journalists not to be treated as criminals.

On no account must this issue be overlooked any longer. There is more at stake than freedom of expression – though that remains, ultimately, the underlying issue. There is also the complicity of the State in media suppression.

By filing a criminal libel suit, one also enlists the office of the prosecution (which, in Malta, falls under the Police) to conduct the case at its own expense. This raises the question of whether it is congruent for the State to foot the bill for a private litigation. From this perspective, criminal libel makes the State an accessory to the intimidation of the free press. 

This has long been recognised by the media which have variously campaigned for the removal of criminal libel for years. Moreover, the Council of Europe has issued repeated calls to “abolish prison sentences for defamation without delay”: arguing that the continued existence of prison sentences for defamation still allowed those countries to impose them and “provoking a corrosion of fundamental freedoms.” 

There are also practical considerations. Though libel laws are necessary to protect people from malicious or baseless insinuations, widespread abuse of criminal libel has stifled investigative journalism in Malta.

Newspapers think twice about undertaking any investigation they fear may attract a libel writ – which, under present legal definitions, could apply to any issue at all – and often will not fight a libel case even if what they printed was true. There can be no doubt that libel suits are a weapon in the hands of the powerful.  

But instead of addressing these issues, before proposing wholesale changes to the law yesterday evening, government’s response to the current controversy seemed geared in the opposite direction. Labour MP Deborah Scembri has even proposed laws to protect politicians from invasion of privacy. 

Again, this confuses separate issues. One should not confuse the intrusion in someone’s private life with the fabrication of a story about someone’s private life. The problem with the Cardona allegations is not that they were made... but that they could have been made without proof; of if said proof exists, not published in full respect of readers as well as of the person about whom the allegations are made.

If proof were supplied, there would be no question that the actions of the minister were indeed of public interest. He was, at the time, representing the government on official business.

Having said this, intrusions in the public life of a politician are only legitimate if the alleged actions affect a politician’s judgement in public matters. Certainly they should not be exploited to stop journalists from investigating stories which have direct bearing on the running of the country... especially not by the same political class which has a made a virtue out of unaccountability.