Setting the libel record straight

Failure to distinguish between politically exposed persons and public figures who are not politically exposed is very often the cause for libel suits

Cartoon by Mark Scicluna
Cartoon by Mark Scicluna

Recent judgments handed down by the law-courts have reasserted the case for a reform of the country’s libel laws: laws which are all too often abused for the purposes of placing limitations on the public’s right to information.

They have also underscored a widespread misunderstanding of what the term ‘public interest’ means in the context of the media. Inherent in that misconception is a refusal to distinguish between politically exposed persons – in whose case, the interest is taken for granted – and other figures who may not be politically active, but who are nonetheless ‘public figures’ in a broader sense.

Failure to make this distinction is very often the cause for libel suits to begin with. People will invariably feel maligned by articles which expose them to public scrutiny. If the issue concerned their own private lives, their reaction would be justified. But when it concerns matters such as the administration of public money, or of State-funded institutions, their personal feelings are quite frankly beside the point. 

At this point, their right to privacy in the matter ends, and the public’s right to information begins. Magistrate Francesco Depasquale confirmed this by dismissing three libel proceedings against this newspaper on largely the same grounds.  

The first two cases concerns libels brought forward by Jesmond Bonello and his PR company, Content House Ltd, who felt aggrieved by allegations that former finance minister Tonio Fenech had orchestrated an advertising boycott of MaltaToday, using Bonello’s company.

Magistrate Depasquale observed how during the period 2008-2012, Content House Ltd had been engaged to perform work for a staggering number of government departments and parastatal entities, both through direct orders as well as tenders.

In its decision on the matter, the court pointed out that upon entering the public arena – and allocation of public funds through direct orders was a matter open for public discussion – private individuals rendered themselves open to scrutiny.

The courts were obliged to assure a balance was reached between freedom of expression and the respect for private life. Jurisprudence had established criteria which must be met for the defence of fair comment to be upheld. Both articles were deemed to fall within these criteria, so the libel suits were dismissed.

The rulings in both cases are significant on at least three fronts. One, they establish that persons who enter contractual relations with government, at any level, are automatically subject to greater levels of scrutiny (a truth all too often disregarded, in a country which also often fails to distinguish between ‘public’ and ‘private’ sectors). Two, it establishes that a balance must be struck between the conflicting rights – privacy and the right to information – and that, in cases of public persons or administration of public assets, the balance should be tilted towards the public’s right to know.

This second consideration would automatically disqualify a great many unnecessary libel suits in Malta: especially by politicians who seem unaware that their public obligations oblige newspapers and media outlets to report their conduct as a matter of obvious national concern. 

The third consideration is that it places the onus of proof on the plaintiff regarding the ‘libellous’ allegation or claim. In spite of their denials of ever having orchestrated a boycott of MaltaToday, the plaintiffs had never exhibited any evidence of ever having subcontracted any jobs to MaltaToday. This would have been the “simplest and most direct proof” to rebut the claims in Balzan’s article, the court argued.

Similar points were raised in the third case, where Depasquale acquitted the newspaper of libel in a case brought forward by three prison warders and a former prison official.

The ruling followed the same logic as the others. The magistrate pointed out that as a public service, prison administration was “subject to wider limits of acceptable criticism than a private individual” and that the article concerns the actions of the plaintiffs’ role as prison management.

The commentary throughout the article, Depasquale continued, was valid in as much as it sought to point out shortcomings within the prisons system: a matter than has an obvious interest for the general public.

“Not only does the press have the task of imparting such information and ideas,” Depasquale wrote in his judgement citing the Axel Springer case, “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’”.

Additionally, Depasquale said that in fulfilling its role, journalistic freedom also covered a degree of “exaggeration” and that genuine mistakes can be tolerated in the serious investigative journalism. “The facts in the article appear to be substantially correct,” the magistrate concluded.

While welcoming the fact that common sense prevailed in these cases, one must also consider the implications of the rulings. Applying the precedents of local and international case-law, it is clear that the law-courts have reached a consistent understanding of the balance of interests involved in any given libel suit. This should be borne in mind by legislators who have so far refused to remove the clearly dysfunctional concept of criminal libel from the statute books… as well as by those who abuse of this fact to stifle free expression.