Do we have a right not to be offended?

Our Courts had been interpreting our libel laws in a way that ignored the media’s right and obligation to expose what is in the public interest and what the right for freedom of expresssion entails

Last week the editorial of this newspaper noted that recent judgements in cases of libel have indicated that our judiciary is no longer playing along with the abuse of the libel laws ‘for the purpose of placing limitations on the public’s right to information’. 

For too long, our Courts had been interpreting our libel laws in a way that ignored the media’s right and obligation to expose what is in the public interest and what the right for freedom of expresssion entails. In fact, the European Court of Human Rights in Strasbourg has on several occasions ruled that a decision on a libel case by the Maltese Courts breached the fundamental right to freedom of expression

Unfortunately, the past record of our Courts shows they have more often than not given the strictest interpretation of the libel clauses in the press law. Exposing anyone to public ridicule was a crime to the extent that a newspaper was once found guilty of libel after a report on a football game had said that a linesman ‘waved an imaginary off-side’. Believe it or not, the linesman sued and won!

With such jurisprudence, is it any surprise that the libel clauses in the press law were abused in the past to smother political dissent and are still abused today to dilute legitimate criticism? 

Maltese Courts are still very far away from giving paramount importance to the right for freedom of expression, although for some time one could glimpse a slow trend towards the fulfilment of this ideal. Does Maltese journalism now enjoy a greater degree of freedom as a result of the overriding powers of the Strasbourg Court of Human Rights? This is a question worth asking and delving deeply into for the right answer is not a useless exercise. Unfortunately the answer seems to be more negative than positive.

By sheer coincidence last Sunday’s editorial coincided with the most recent issue of The Economist that chose to dedicate its cover story and an interesting editorial to the notion that freedom of speech is under attack all over the world and is actually in retreat.

According to this editorial, this is happeneing on three fronts: an increase in repression by governments; enforcement of censorship by assassination executed by non-state actors; and the spread of the idea ‘that people and groups have a right not to be offended’.

The last notion is the one that is the more interesting in the local scenario. The Economist puts it this way about this assumed right: ‘This may sound innocuous. Politeness is a virtue, after all. But if I have a right not to be offended, that means someone must police what you say about me, or about things I hold dear, such as my ethnic group, religion, or even political beliefs. Since offence is subjective, the power to police it is both vast and arbitrary.’

Therein lies the small seed of the mighty oak of intolerance. 

Always lagging in developemnts in the rest of Europe, Malta is now enjoying an unprecedented degree of freedom of expression. Some bloggers are deemed to be abusing of this right and people are asking why this abuse is being tolerated.

I do not agree with a lot of things that are said on the web, but I likewise do not agree that there should be an attempt at muzzling them. Such an attempt would open a can of worms making things worse, not better. As The Economist puts it: ‘The police should deal with serious and imminent threats, not arrest every bigot with a laptop or a megaphone’.

Yet this must be viewed against a background of legal intolerance. There are 14 EU states that have laws against blaspheming; 16 where insulting state symbols such as flags and offending government bodies is illegal; and 23 where libel can be criminal. The pressure against freedom of speech is incredible. Bans on ‘hate speech’ are being widely inferred in such a way as to restore a degree of intolerance that had been undone by the right for freedom of expression. Last February a Danish court ruled that burning a Koran was criminal ‘hate speech’. 

Even here the interpretation of laws against ‘hate speech’ is arbitrary and can lead to more negative than positive effects.

In the cricumstances, I think that the concluding sentences of the editorial in The Economist are wise words indeed: ‘Never try to silence views with which you disagree. Answer objectionable speech with more speech. Win the argument without resorting to force. And grow a tougher hide.’

The Orange Revolution

I am, of course, referring to the new ‘Democratic Party’ being set up by former Labour MP Marlene Farrugiua and friends and not to the so-called ‘peaceful’ revolution in Ukraine together with its unintended consequences. 

I have often held that to succeed a third party in Malta must have enough good candidates – at least four for every electoral district ¬– to attain the critical mass necessary for the party to stand a chance of electing a number of MPs, however small.

One still has to see whether Marlene’s ‘Democratic Party’ will make any headway in this sense. There could hardly be a better opportunity. The number of people fed up with the two ‘traditional’ main parties and their antics has never been so great, as has been confirmed over and over again by different polls.

Normally when election appproaches, both parties tend to recover most of their ‘lost sheep’ and keep in the running. What happened in the last election was different and Labour won with an unprecedented majority – confirming the fact that too many were fed up with the way Gonzi’s PN was running the show. Three years later, many of those who switched to Labour are displeased with Muscat on the transparency and good governance issues and the resulting corruption... but are still reluctant to return to the PN. Hence the seeds of the chances that the new Democratic Party might have.

Both parties will resist a third party, saying the choice must always be between the two of them.

This ruse has been successful over the years. 

Only time will tell whether the voters will see through it come 2018.

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