Defamation and the Maltese courts: the chilling effect on the press

Most journalists are unable to face down this culture of litigation; many media houses cannot foot the bills for their lawyers and the court fines; and many times, journalists who have left the career often return to face a longdrawn out defamation case many years later

It was one of my first appearances as a journalist on TVM – a programme organised by the Broadcasting Authority. I was representing the newspaper Alternattiva, a newspaper which I helped found together with others in 1989, and which I believe changed the way journalism was presented in newspaper format in Malta.  

I was facing Joe Brincat, then deputy leader of the Labour Party. And as usual, I was ready to go, earnest to ask him some thorny questions.  

Alternattiva was a leftist newspaper, but out of love with the Labour Party at its abandonment of its socialist, founding principles.  

“What do you think of the incident where a Labour MP in Gozo organised a lottery for those attending a political event?” I asked Brincat – the prize for winning the lottery draw that night had been – of all things – a government job!  

That event had actually happened before the 1987 election, which saw the PN win by a small majority of 4,000 votes after years of thuggery, corruption and intolerance under the Labour administrations of Dom Mintoff and Karmenu Mifsud Bonnici.  

Brincat mumbled something and avoided answering the question directly, and I was a very happy 26-year-old journalist because I knew I had the context for a story. This was the early 90s, when journalism was characterised by front-page eulogies for respective party leaders on l-Orizzont and In-Nazzjon, or where The Times then would only dedicate front pages for world news, UK warships, or the Queen, with national news sliding into the inside-left pages.  

Alternattiva was then the only newspaper promoting investigative journalism and it was a breath of fresh air.  

Well that incident led to my first defamation case. I was sued by the Labour MP from Gozo, and when the case was eventually decided years later, I had left Alternattiva as its secretary-general and started working as a full-time journalist. I was then fined Lm850 (€1,972), which Alternattiva refused to pay for me. Back then, that was equivalent to two and half times my monthly salary. 

I should not have lost that case. Throughout my career I suffered 90 defamation cases, surely a record for Malta, and for the most part, I was on the losing side. I’ve been sued by numerous political leaders, from Mintoff and the whole Nationalist Party executive, to Labour’s Michael Falzon, the tuna industry, the hunters’ Lino Farrugia, magnate Bertu Mizzi and far-rightist Norman Lowell, apart from countless others.  

I do not believe that I was always right, but the establishment inside the judiciary, the long-standing influence of the business class and politicians, have moulded a judicial system that is against the press by pushing it to justify all its commas, exclamation marks and tone.  

One particular case was a decision by then judge Joseph Said Pullicino, who was politically appointed under a PN administration. He concluded that leaking a video of the late Nationalist MP Joseph Fenech illegally entering the airport’s Customs picking up an art piece, had been carried out in bad faith. Said Pullicino decreed that the report had been a dishonest piece of work, because it was published before the 1992 national election and aimed at harming Fenech, an incumbent minister. Alternattiva was then fined a record amount in the history of defamation.  

Needless to say we appealed, noting not only the right of the press to report ‘illegal’ acts but also to remind the judge that the story was not written before the election but after, even though this was not an argument in itself. The appeals court did not overturn the decision. And Said Pullicino went on to become Chief Justice, then Ombudsman and a member of the Caruana Galizia public inquiry.  

Now most journalists are unable to face down this culture of litigation; many media houses cannot foot the bills for their lawyers and the court fines; and many times, journalists who have left the career often return to face a longdrawn out defamation case many years later.  

If my calculations are correct, those 90-plus defamation cases have historically landed me with over €250,000 in fines. Well, until last week, when Chief Justice Mark Chetcuti overturned a decision of the Magistrate’s Court that had decided in my favour, over this very column in which I fleetingly reminded readers of Dr Joe Brincat’s arrest back in the late 1980s.  

Chetcuti fined me €1,000. I respect his decision, as I always have in the case of the judiciary. But I disagree with his rationale. For one, he said in his decision that I did not publish Dr Joe Brincat’s reply. Which? I never received one and did not know of one.  

Chetcuti opined that I had no need to verify the facts. Untrue. In court I said I was quoting from newspapers of the time, including the Times of Malta, and that the angle of the story was very clear: had the late Guido DeMarco – then justice minister – not intervened with his Italian counterpart, Brincat’s incarceration in Italy would have been far longer.  

I did not go into the fact that at the time, Alternattiva – with its limited resources – had sent a journalist to Italy to collect a copy of the judgement that shed light on the accusations. That was pre-Internet days, boys and girls. Yet most significant in Mark Chetcuti’s decision was his comment that the decision to award a fine of €1,000 was fuelled by the court’s consideration for the press, and not to impart a chilling effect.  

That comment was more important than the whole judgement, an interesting piece of simplistic, cautionary advice to the public never to write about something that happened 30 years ago, unless they can recount it from beginning to end, and not by some passing comment.  

Surely the Chief Justice is a decent man, but it is evident he has no idea what writing an opinion column entails. It is not a report. It is an opinion, a comment. For with his reasoning, had I simply mentioned that Bill Clinton had sex with Monica Lewinsky and stopped there, I would be asking for trouble since I must then have to mention that despite having availed himself of oral sex inside the White House, Clinton also survived an impeachment.  

It is decisions like that which can make investigative journalism an impossible task.  

Now I am at the end of my career and I do not expect any favours. But while the emphasis in the last years has been about the threat of SLAPPs, that is litigation shopping in the foreign courts against Maltese journalists, the real problem has been the Maltese judicial system.

I’m sure the LIBE committee visiting Malta this week will take note of this.  

Two years ago I wrote to Mr Justice Mark Chetcuti about the way the Magistrates’ Court had ignored the spirit of the new press laws, which called for a mediation process before the commencement of defamation proceedings. That letter was completely ignored.  

As someone who is in court almost every month, as the legal representative of the publications I own, I know that this is not being followed by the magistrates who deliberate in these cases. We talk about freedom of the press, about the need to have free thinking and diversity and the environment or space to question and quiz the establishment. But that is not possible in a difficult judicial atmosphere where the journalist, opinion writer or blogger is constrained by rules that narrow one’s ability to express a thought, a criticism, an idea or an argument.  

Unlike others, I do not have the time to call the judiciary names or to mock it. There were those who did it with gusto and even managed to influence judges and magistrates.  

I have no interest in doing this. My interest is highlighting the fact that freedom of the press cannot be a piecemeal process. We as journalists have responsibilities and we should adhere to a code of ethics but we cannot be straight-jacketed and asked to whisper instead of speaking out loud.  

* * *  

With cost of paper soaring to a staggering 60% in the last six months, the government’s commitment to help printed journalism and journalists in this field is more than welcome.  

It is a very positive sign.  

It is also noteworthy that this is the first time that all newspaper publishers have come together to take a stand and work together, with the support of the IGM.  

I am proud to have at least catalysed this event and hope this will lead to more cooperation between the different media houses for the benefit of the press, the journalists and the readers of print and digital media.