Protecting the most basic principles of democracy

MaltaToday will further undertake all legal courses of action available, should its legal rights as a media organisation, as well as the interests of the general public, be illegally undermined by any local court order.

Cartoon by Mark Scicluna
Cartoon by Mark Scicluna

In a court sitting on Thursday, MaltaToday managing editor Saviour Balzan was pressed by a police inspector to reveal the sources of the Enemalta oil procurement corruption scandal, first published in January 2013.

Prosecuting inspector Jonathan Ferris insisted in court that this information was "necessary" to assist police in their investigations.

At face value, this request is not only absurd and an affront to press freedoms, outlined in Article 10 of the European Convention of Human Rights. It is also illegal.

According to Article 46 of the Press Act, no court shall require a person to disclose, "nor shall such person be guilty of contempt of court for refusing to disclose" the source of information contained in a newspaper or broadcast "unless it is established to the satisfaction of the court that such disclosure is necessary in the interests of national security, territorial integrity or public safety, or for the prevention of disorder or crime or for the protection of the interests of justice".

The reasons for this injunction are clearly laid down in case law pertaining the European Court of Human Rights. The ECHR has repeatedly emphasised that Article 10 of the European Convention on Human Rights safeguards not only the substance and contents of information and ideas, but also the means of transmitting it - i.e., the press.

Protection of press sources is a vital component of the freedom of the press, which is in turn one of the pillars upon which the entire edifice of democracy is built.
"Without such protection," the ECHR notes, "sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined, and the ability of the press to provide accurate and reliable information be adversely affected... [A]n order of source disclosure... cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest." (Goodwin v. the United Kingdom, 1996).

Both national and European legislation provide for exceptions, but under no circumstances do any of these exceptions apply to the rule in this case. The interests of national security, territorial integrity or public safety, et al, cannot be invoked to justify the revelation of the source of information regarding a crime that has already been committed, and whose effects have already been felt. Nor can the 'interests of justice' possibly be served by revealing the source, in flagrant breach of both local and international law.

On the contrary, such an action would cause untold damage to the interests of justice in our country, at a time when public perceptions of the justice system are arguably already at an all-time low. It is pertinent to observe that the police would not have investigated the Enemalta oil scandal at all - still less made arrests - had the story not broken in the press first. This in turn would not have been possible either, had the source of the original leak to MaltaToday had reason to believe that his or her identity might later be exposed.

Under closer scrutiny, the official justification of the police's demand - specifically, that this information is necessary to aid the police in its investigation - is not only a ludicrous distortion of reality; it also exposes the incompetence of a police force that cannot seem to investigate crimes on its own steam. The police investigation has been underway for almost a full year, and have already filed criminal charges in connection with the case. Further clues have since been provided by GeorgeFarrugia, the oil trader who received a presidential pardon in return for information related to the case, in the hearings before the house's Public Accounts Committee.

Apart from all the aforementioned considerations, revealing the identity of the source at this late stage cannot, by definition, add or detract anything from the police's ongoing investigations. From this perspective one must seriously question the true motives behind this illegal and irrational request. It would be regrettable to have to conclude that the police are deliberately seeking to weaken the free press's ability to bring to light matters that are of the utmost public interest, and which they themselves have proved incapable of detecting.

In view of all this, the reaction of Magistrate Claire Zammit Stafrace to this request was astounding, and illustrate that the overwhelming implications for both press freedoms and the rule of law were not recognised or taken into account.

The magistrate asked the prosecuting inspector to submit his illegal request as a court writ, and advised (jokingly) Mr Balzan that he "might have to bring an overnight bag in the next sitting".

The penalty for failing to comply with this request includes a possible prison sentence. Readers are invited to draw their own conclusions about the implications Magistrate Zammit Stafrace's anomalous remark.

It goes without saying that, in the interest of fulfilling its 'vital public-watchdog role', MaltaToday will remain fully committed to upholding the protection of all its sources, as necessitated by the Human Rights Convention.

MaltaToday will further undertake all legal courses of action available, should its legal rights as a media organisation, as well as the interests of the general public, be illegally undermined by any local court order.

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The Times of Malta has published an Editorial today “Press confidentiality is a necessity” and it says “It is incredible – if not an outright attack on the freedom of the press – that the police should expect a journalist to divulge his confidential source in a case that has been before the Public Accounts Committee and the court for months on end. We are, of course, referring to the Enemalta oil procurement scandal.“ This is indeed an outright attack on the freedom of the press. We all shall consider that the importance of the freedom of the press lies in the fact that for most citizens the prospect of personal familiarity with newsworthy events is unrealistic. In seeking out news, the media therefore act for the public at large. It is the means by which people receive free flow of information and ideas, which is essential to intelligent self-governance, that is, democracy. For a proper functioning of democracy it is essential that citizens are kept informed about news from various parts of the country and abroad, because only then can they form rational opinions. A citizen surely cannot be expected personally to gather news to enable him or her to form such opinions. Hence, the media play an important role in a democracy and serve as an agency of the people to gather news for them. It is for this reason that freedom of the press has been emphasised in all democratic countries. Freedom of expression is a cornerstone of democratic rights and freedoms. In its very first session in 1946, before any human rights declarations or treaties had been adopted, the UN General Assembly adopted resolution 59 (I), stating, “Freedom of information is a fundamental human right and... the touchstone of all the freedoms to which the United Nations is consecrated.” Freedom of expression is essential in enabling democracy to work and public participation in decision-making. Citizens cannot exercise their right to vote effectively or take part in public-decision making, if they do not have access to information and ideas and are not able to express their views freely. Freedom of expression and the freedom of the press are thus not only important for individual dignity but also to participation , accountability and democracy. Violations of the freedom of the press often go hand in hand with other violations, in particular the right to freedom of association and assembly. The right to freedom of expression upholds the rights of all to express their views and opinions freely. It is essentially a right which should be promoted to the maximum extent possible given its critical role in democracy and public participation in political life. Malta Today, the democratic public is on your side, there is no doubt.