Use of your public photos to discredit you is not libel, it’s harassment

That is the real crux of this whole episode and this is what we should all be hash tagging about: the freedom to protest and criticise those in power (no matter which party it is) without fear that some old photo will be dredged up and used against us

The problem with the lawsuit which actress/social activist Pia Zammit filed against It-Torca newspaper, is that it appears to have been filed on the wrong grounds.

For those who have not followed the story, a backstage photo of Pia dressed in a Nazi uniform and fooling around with a couple of Swastika badges during the production of ‘Allo ‘Allo! was published by the paper, which wrote that the actress was being insensitive to those who had suffered as a result of Nazism. Ms Zammit sued, claiming the paper was insinuating she was a Nazi sympathiser.

Like many others, I was initially taken aback by Magistrate Rachel Montebello’s ruling that the way It-Torċa used the photo and the accompanying story did not constitute libel. However, it is only when one reads the actual judgement that the whole thing makes sense. In brief, the conclusion of the Court was that by publishing the photo under the headline ‘M’Ghandux Ikun Hemm Cajt bl-Iswastika... ‘insensittivita’ li tippoza biha’ (“One should not joke around with a swastika…it is insensitive to pose with it”), was not libellous according to law, because the element of serious harm was lacking. Basically, the Court found that Ms Zammit had failed to prove that serious damage had been made to her reputation as a result of the newspaper articles accompanying the said photo.

The judgement added that while Ms Zammit was claiming that the newspaper was implying she was sympathetic to Nazism, the Court concluded that at no point did the paper describe her as a Nazi or linked her Nazism. On the other hand, what the paper was highlighting “was the element of insensitivity of the pose and the irony of the contrast between the role of the actress as a person who is involved in the administration of #Occupyjustice, and her joking pose holding symbols of Nazism.”

The most significant part of the judgement, however, was when the Court pointed out that the actress had uploaded the photo herself, so she could now hardly turn around and claim that the photo was being used to defame her, just because the newspaper described it as controversial.

The Court agreed with the paper that this constituted fair comment about a public figure. The Magistrate ruled that the photo which had been in the public domain for so long could not be seen as having the ability to persuade an ordinary reader that the actress was a Nazi activist, and it was also pointed out that Ms Zammit had been given a right of reply by the paper to explain the context in which the photo was taken.

I feel it is important to go into the details of what the judgement actually said because of the ensuing confusion which broke out on social media. A hashtag #IstandwithPia was quickly produced and everyone who has ever stepped foot on stage whipped out old photos to claim, “I once played a murderer, that doesn’t mean I am one”. As soon as I read the actual ruling it was abundantly clear that the criticism of the Magistrate’s ruling was based on some media reports which had completely got the wrong end of the stick. At no point did the ruling say that the role an actress plays on stage reflects her personal beliefs. When someone sues for libel then that is the Court’s remit. If the grounds for libel have not been proven, then the case is thrown out, and that is what happened. The Court was not asked to rule on any other aspect of the newspaper article.

Of course, there is a big HOWEVER to all this, because it cannot be denied that the intention behind the story was to discredit Ms Zammit’s work as a very vocal anti-government activist. The fact that a trade union newspaper historically affiliated with Labour went through her Facebook photos until they found something which they could “attack” her with has disturbing implications.

Unwittingly, she provided them with the perfect fodder in their intentions to discredit her. So, if anything, Ms Zammit’s lawsuit should have been on this point: that she was being harassed by the political party she was protesting against, and attempts were being made to intimidate her, in order to shut her up. I am no lawyer but had she fought it on that front, I believe, she would have had more of a case.

Her other option could have been to just close that chapter and move on, especially since she had already been given a right of reply. Sometimes ignoring such attempts to smear one’s name (no matter how absurd they seem) are best ignored because if libel suits are notorious for anything, it is for bringing even more attention to the original story in the first place; which explains why so many do not even bother to sue.

After all, unpleasant as all this was, it has to be said that Pia Zammit is not the first person to have a photo taken out of context and used without her permission, and then be harassed and publicly mocked in an attempt to shut down her voice.

Let us not forget that this unsavoury practice was started by Daphne Caruana Galizia who delighted in reproducing photos lifted from the personal Facebook pages of anyone remotely connected with Labour (and here I am not just speaking about politicians or public figures).

Her claim was that once they were in the public domain these photos were up for grabs, something I did not agree with then and which I still do not agree with now, no matter who does it.

But since people had uploaded the photos themselves, they ended up feeling powerless to put a stop to this practice of having a personal photo uploaded with an open invitation to the public to pass nasty (usually anonymous) comments to their heart’s content. Even a relatively innocuous photo can be made to look incriminating or in bad taste if the right spin is given to it; just ask anyone who has had this happen to them (and please do not use the argument that Daphne is not the same as a political party newspaper because in her lifetime she carried the same kind of clout to make or break someone with a swipe of her pen).

Having one’s photo used in this way feels invasive and intrusive; it makes one feel vulnerable and exposed, and I would not wish it on anyone. Certainly, when such tactics are adopted by those in a position of considerable power (whether it is a prominent journalist with a clear political agenda, or the media owned by a political party) it means that one has stooped to a new low. It also means that the person you have ’gone after’ is in fact a thorn in your side… otherwise why bother going to all that trouble? Above all it means you have no valid arguments left to counter whatever that person is representing, so you have to resort to what can only be described as dirty tricks to intimidate them into silence.

That is the real crux of this whole episode and this is what we should all be hash tagging about: the freedom to protest and criticise those in power (no matter which party it is) without fear that some old photo will be dredged up and used against us.