The criminal libel bandwagon

Even if never carried out, the threat of prison in itself constitutes a direct affront to freedom of expression. But there are other, less direct threats involved. 

On Sunday, Opposition leader Simon Busuttil joined the ranks of many in calling for the abolition of criminal libel in Malta. “A modern democracy cannot allow for the possibility of being thrown in jail when expressing their right to freedom of expression,” he underlined.

Busuttil is perfectly correct. Criminal libel is indeed an aberration in any modern democracy, as Magistrate Francesco Depasquale recently pointed out (in the ruling which sparked the PN’s sudden interest in this matter).

Even if never carried out, the threat of prison in itself constitutes a direct affront to freedom of expression. But there are other, less direct threats involved. 

By filing a criminal libel suit, one actually enlists the office of the prosecution (which, in Malta, falls under the Police Force) to conduct the case at its own expense. This raises the question of whether it is congruent for the State to foot the bill for a private litigation… a question that assumes greater relevance when one considers that libel – both criminal and civil – is very often resorted to as a means of silencing media critics.

From this perspective, criminal libel makes the State an accessory to the intimidation of the free press. And by relieving plaintiffs of the costs of a lawsuit, it also facilitates (or even encourages) liberal use of a mechanism that is unjust in itself, as well as a waste of the state’s resources.

This has long been recognised by the media which have variously campaigned for the removal of criminal libel for years. Moreover, the Council of Europe has issued repeated calls to “abolish prison sentences for defamation without delay”: arguing that the continued existence of prison sentences for defamation still allowed those countries to impose them and “provoking a corrosion of fundamental freedoms.” 

As such, it is somewhat late in the day for the Opposition leader to jump on the bandwagon calling for a ban on criminal libel. One cannot help but suspect that, by entering the lists precisely at this moment, Dr Busuttil was more concerned with scoring political points than with safeguarding a fundamental human right.

This impression gains weight when one looks at Busuttil’s (and, even more so, the Nationalist Party’s) own record in filing libel suits against newspapers. In April the Opposition leader filed five civil libel suits against three newspapers over comments by disgraced entrepreneur Marco Gaffarena… though significantly, he stopped short of suing Gaffarena himself.

Meanwhile, a full list of libel suits filed by other members of the same party would fill several newspapers. The fact that most of these (including Busuttil’s) were civil lawsuits does not alter the underlying premise that libel, in all forms, is routinely used for political purposes in this country. 

This is also why the problem cannot be argued away by means of a simple promise to remove criminal libel. By isolating only the prison threat, critics of criminal libel give the impression that this archaic procedure constitutes the only way in which Malta’s Press laws threaten freedom of expression. The reality, however, is more complex. 

In practical terms, the consequences of civil libel suits are far more threatening to the survival of media houses, than the threat of a prison sentence that is never carried out. The expenses involved are higher.

But the overwhelming problem is the law itself, which offers civil libel an astonishingly wide range of applicability, taking the concept of libel far beyond its actual meaning. 

By definition, libel requires two conditions to be present. An allegation must be proven to be false; and the same allegation must also be demonstrated to have caused damage to the plaintiff (be it financial or other damage).

Malta’s law overlooks the all-important second consideration, and generously adds other factors that have no place whatsoever in a libel law. Plaintiffs can sue because they felt ‘offended’ by an article, which (among many other examples) permitted FKNK secretary Lino Farrugia to sue this newspaper over a cartoon.

Unlike criminal libel, however, civil libel laws do have a place in modern democracies. Few would disagree that the media wield a significant influence in any country, and that regulation of the media is necessary to prevent abuse of this power. No local news outlet would argue that genuine victims of such abuse need recourse to some form of remedy.

Herein lies the crux of the matter: libel in Malta does not only protect victims of genuine abuse. It also provides the means to effectively (and legally) gag the press.

Busuttil is therefore right to call for the removal of criminal libel – which should be a sine qua non in any democracy anyway – but what is needed more urgently is an overhaul of civil libel procedures, to ensure that (a) they continue to offer reasonable remedies for genuine cases, and (b) they ward of the possibility of abuse of the law for political (or other) ends.

Until this law is reformed to address those two concerns, one would have to conclude that the legislative arms of the State will continue to form part of a strategy to silence media critics. And this, ultimately, is the real injustice inherent in Malta’s libel laws.