Blogs and harassment

Former MP Jeffrey Pullicino Orlando may have kicked a hornet’s nest, when he filed a judicial protest calling on “communications minister Manuel Mallia, the Malta Communications Authority and internet service providers” to rein in the practice of “harassing public figures”, which he said was being “disguised as journalism”. 

More specifically, the protest invokes the Code of Conduct for Electronic Content Provision by Electronic Communications Undertakings: calling on Vodafone and Go to enforce provisions dealing with threatening content.  

He did not specify any examples of harassment, but the reference is clearly to Daphne Caruana Galizia’s blog, which has circulated pictures lifted from Pullicino Orlando’s own Facebook Page.

Immediately, Pullicino Orlando’s initiative seems to have divided public opinion. Many observed that the former MP was seeking to silence media criticism aimed at himself… incongruously, at a time when Parliament had only just decriminalised the vilification of religion. Though meant as a joke, there may be some truth to the pointed comment that ‘it is OK to insult God, but not to insult public personalities’.

At the same time, however, there can be little doubt that we do live in times when online harassment has come to be viewed as an acceptable – if not necessary – weapon in the political communications war. Pullicino Orlando himself may not be the ideal example. After all, if Caruana Galizia was able to get hold of his private holiday photographs, it was only because he himself had uploaded them onto Facebook: thus placing them in the public domain.

This does not, however, mean that his complaint is irrelevant in itself. Pullicino Orlando is hardly the sole victim of online ‘harassment’ – if this is the correct term in this context – and certainly not the most serious. Others may therefore sympathise with the aims of his judicial protest. Many might agree that online communications have, in this respect, been allowed to run riot. The lines of decency and prudence have time and again been crossed, and the number of people exposed to ridicule, spite and contempt is forever growing.

Pullicino Orlando’s judicial protest can therefore be seen as another phase in this ever-evolving area of conflict. It is inevitable that people would sooner or later seek some form of legal channel to challenge a status quo that otherwise seems unassailable. But before trying untested methods, one must question whether the current laws and regulations governing communications are up to the task of moderating the type of ‘harassment’ in question.

The first question to ask is whether the online activity in question can be deemed illegal. The criminal code already contains provisos against hate-speech, some of which have already been cited in court as a justification to censure articles (their application to articles or comments published online, however, remains untested). 

Libel laws, both civil and criminal, also offer protection against victims of deliberate slander and wrongful accusations. It remains unclear why these have, to date, been interpreted as applicable only to printed media… when the law courts recently determined that bloggers are by definition journalists, and therefore fall under the Press Act.

The decision was triggered by questions surrounding the protection of witnesses. The implications, however, go beyond the case in point. If blogs fall under the Press Act, they are as liable to legal consequences as any other form of media.

Part of the problem, in this instance, is that the nature of the ‘harassment’ does not fit into any known definition of libel. The blogposts may indeed have been intended to harass; but their content was self-evidently true, and originally uploaded by the ‘victim’ in question.

This leaves us with the question of what can be done when unwanted or unacceptable behaviour is not covered by any legal restriction: as seems to be the case here.

The Code of Conduct for Electronic Content Provision by Electronic Communications Undertakings, alluded to above, does not seem to provide clear answers. With regard to internet content in the broadest sense, it observes that ‘undertakings have no control over the content that is offered or available over the Internet, or through unrecognised third parties’, and therefore cannot take any action. 

With specific reference to ‘malicious communications’, the Code states that: ‘Undertakings shall vigorously deal with any forms of content that may give rise to malicious forms of communication, adapting existing procedures as may be appropriate’. There is, however, no definition of ‘malicious communications’, nor even any indication of what these adaptable procedures are.

One must also ask whether national legislation is even sufficient, given the trans-continental nature of the internet itself. Even if service providers withhold service from ‘malicious bloggers’, there is no limit (except perhaps money) to overseas hosting possibilities.

From this perspective, Jeffrey Pullicino Orlando’s protest – though frivolous in itself – has indeed underscored a lacuna in the laws and codes of conduct governing online hate speech. Clearly, all such legislation must be updated to reflect the present-day realities, and above all to provide proper classification of the media. 

It is not just individual bloggers who need to know where they stand at law. Anyone commenting on the internet has the right to know if their online behaviour may have legal repercussions.