Upholding freedom of expression

Magistrate Francesco Depasquale’s judgment also serves to clear the air on a number of misconceptions surrounding the principle of freedom of expression.

On Monday, Magistrate Francesco Depasquale acquitted MaltaToday’s managing editor Saviour Balzan and journalist Matthew Vella of criminal libel charges brought by far-right political activist Norman Lowell, in response to three articles about the arson attack on blogger Daphne Caruana Galizia’s property in 2006.

Not only does this mark an important victory for freedom of speech in in its own right; but Depasquale’s judgment also serves to clear the air on a number of misconceptions surrounding the principle of freedom of expression.

In March 2006, Caruana Galizia’s home was the target of a particularly violent and malicious attack. Five lorry tyres were drenched in petrol and set ablaze against the front door, at a time when the residents were at home in bed. 

This was but one of a number of similar attacks targeting outspoken critics of Lowell’s inveterately racist politics: previous victims include Fr Pierre Grech Marguerat and lawyer Katrine Camilleri from the Jesuit Refugee Service.

On the night of the attack, Lowell and his supporters held a barbecue at Dwejra, at a short distance from Caruana Galizia’s residence. Later that night Lowell himself would boast in an online comment: “Yes, indeed, I have drunk to the dregs and toasted the heroes in my own incorrigible ways.”

This underscores an intrinsic irony in what happened next. The three articles for which Lowell would later sue this newspaper for libel were all rooted in a link that had actually been forged, in public, by Lowell himself. 

Balzan and Vella argued in court that the articles were justified by the right to freely report facts of a social and political nature, particularly in view of the “essentially racist” politics of the plaintiff and the importance of the right to “fair comment” in a democratic society.

It is this latter detail that makes this judgment an important one.  Depasquale correctly observed that the term ‘fair comment’ depends on a fundamental distinction between ‘facts’ and ‘value judgments’. 

Applied to this particular case, it is a fact (uncontested) that Lowell held a barbecue in Dwejra, as reported; it is also fact that Caruana Galizia’s home was attacked that night. The link between those two facts, on the other hand, is a value judgment.

Quoting from case law, Despaquale observed that “…a distinction needs to be made between statements of fact and value judgments, in that, while the existence of facts can be demonstrated, the truth of value judgements is not susceptible of proof. The requirement to prove the truth of a value judgment is generally impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. 

This is of fundamental importance, as it recognises that a balance has to be struck between value judgments expressed by a news agency, and the particular relevance of the discussion to the social and political realities of the day.

Other cases cited in the same judgment reinforce the same point: “The Court has also repeatedly emphasised the essential role played by the press in a democratic society. Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ‘public watchdog’.”

In this context, the court essentially ruled that the comment was fair in the context of the media’s duty to report on matters of public interest. And there are few matters of graver public concern than open, violent attacks on freedom of expression.

Moreover, the court underlined that a degree of leeway is necessary for such discussion to take place: “Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation. Furthermore, it is not for the Court, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted in a particular case.”

Naturally, the press is also saddled with additional obligations and responsibilities. Freedom of expression must also be balanced against the individual’s right to privacy.

Here, Depasquale’s ruling serves as a reminder to all those with public aspirations that they cannot switch between the mask of ‘public personality’ and ‘private individual’ at will. This is relevant to all cases where public officials seem to expect not to be treated as such when it comes to media enquiries.

In this case, it is arguably more pertinent: Lowell is not just a well-known public personality, but he also embraces dangerously unstable political views which have at times extended to incitement to violence (for which he was previously convicted).

In brief, it was Lowell’s own public persona that made the initial value judgment reasonable, from a media fair comment point of view. There is a lesson there to be learnt by all who would use the law to stifle freedom of expression.

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