Protecting our freedoms through reason

Much in the same way as this newspaper has asked the government to understand that universal human rights are a package that cannot be disassembled for its own political ends, MaltaToday is eager to play its part in the unfolding debate on freedom of expression and the right to reputation of people who feel victimised or targeted by unfair comment.

Ever since the European Court of Human Rights recognised the existence of a right to protection of reputation under the European Convention on Human Rights, a conflict has existed between freedom of expression and the right to reputation. The principle of indivisibility of human rights means that both rights carry equal weight, and neither right can be granted absolute preference.

Resolving such conflicts involves finding a compromise solution that finds a middle ground between both rights. The freedom of expression does not confer an unlimited right to make statements that affect another's reputation, but the right to reputation also does not mean protection against all critical statements.

The German Constitutional Court's Praktische Konkordanz doctrine identified several elements in the resolution of such conflicts, but we will restrict ourselves to some important principles which this newspaper feels should form part of a consistently applied and rigorous model adopted by our courts.

Firstly, it must be a test in which the courts assess whether protecting an individual A's right to reputation would more seriously impair individual B's right to freedom of expression, as against the minor impact of upholding B's right against A's right to reputation.

Secondly, the courts should consider whether the conflict between both rights also affects the rights of other people: has freedom of expression negatively impacted upon the equally important rights to privacy and family life of other people connected to the person whose right to reputation is being attacked?

Thirdly, general interest: does B's freedom of expression have a greater negative effect for the general interest, than the protection of A's reputation would have; or would protecting A's reputation be more negative for the general interest than the lesser impact of upholding B's freedom of expression?

Two other elements deserve attention: purpose and responsibility. Our courts should be clear as to whether freedom of expression is being used to coerce, blackmail or undermine a person by attacking their reputation; and whether the person exercising this right is using it irresponsibly, in which case preference might be given to the right to reputation.

This newspaper will remain a defender of freedom of expression, knowing full well the risks this brings upon it after years of enduring the pressure wrought by libel actions from politicians and businessmen seeking to undermine our freedom, in the name of protecting their interests.

We affirm this principle while keeping in mind that public people, those elected and appointed to take decisions and utilise taxpayers' funds, must expect a lower degree of privacy than others, and be open to fair comment, satire, criticism, and even the crudest of insults - insults whose vulgarity is also protected by Article 10 of the European Convention of Human Rights.

Our fair warning applies to those whose social media etiquette lacks the decorum that their public post bestows upon them: careless talk, ostentatiousness, uncouthness, and private snapshots that - until the birth of Facebook - were always private domain, are fair game once they willingly render them public.

But we will not defend the willful and malicious use of the press's powers to publish articles that may have no bearing on a debate of public interest, or to attack public individuals and their family members or associates personally, simply to undermine their public role and standing.

MaltaToday has suffered under the weight of costly defamation penalties on matters of public interest that were given short shrift by the courts. These same courts have applied different yardsticks to defendants in criminal libels: we witness government functionaries and journalists being placed under arrest or fined for no-shows during their court hearings, while others in the trade being shown a questionable degree of clemency.

We appeal for a level playing field, a modernisation of the interpretation of defamation that equals European standards, and warn legislators against increasing penalties that financially and symbolically undermine our role as the fourth estate.