Press laws: the debate starts

There is much that is welcome in the draft ‘Media and Defamation Law’, made public this week by Justice Minister Owen Bonnici. But there is much that may need to be reconsidered.

On a positive note, the proposed law will abolish criminal libel in its entirety, and introduce a preliminary hearing for aggrieved parties and defendants to seek a mediatory solution before heading into court. If enacted, this would bring to fruition a policy that has – on paper, at least – been shared by both Labour and Nationalist parties for years, yet somehow never got translated into law.

The removal of criminal libel is therefore welcome and long overdue, as is the proposal to abolish precautionary warrants in libel cases likewise a logical step in the right direction. The timing is however indicative. Garnishee orders were never actually used (though they were often threatened) against journalists before last week. Nor were they ever conceived as a means to gag the press.

It remains anomalous that a Cabinet minister, within the same government that is proposing both these things – the abolition of criminal libel and preventive warrants – is currently pursuing both avenues in a case filed just last week.

It is understandable that the new law would not be retroactive; but one would also expect the government to abide by the spirit of a law it proposes itself.

All the same, this aspect of the law does represent a true ‘reform’, in the sense that it points a genuine new legal direction. For the first time, we are moving away from automatic court defamation action, and forcing the complaint into a preliminary hearing where plaintiff and defendant can agree to resolve the matter and settle it without further aggravation in lengthy and expensive court battles. This could be beneficial to all sides (including the State, whose justice system may be spared necessary cases). 

However, the increase in the maximum fine is disproportionate, and may have unintended repercussions. Firstly, the prohibitive nature of the fines may indirectly serve as a chiller on certain journalistic stories. Secondly, it will push the cases into the court of judges – not magistrates – because of the higher damages. This automatically annuls the benefits of decriminalisation.

This disproportionate increase serves no interest except to those who regularly make use of libel laws: usually, politicians. Indeed, while the onus of proof is always on the defendant, the access to a libel case in Malta remains relatively inexpensive (criminal libel is at the state’s expense) and the plaintiff does not have to prove prima facie to the court that s/he has grounds to pursue a defamation case. This is one area the new law does not address.  

Another major bone of contention is that the law gives the impression that it will be creating two tiers of defendants. Those who have registered their publication or website with the media registrar – and these people may not even be bona fide journalists, but also purveyors of ‘fake news’ – will be able to avail themselves of the defence to protect their sources’ confidentiality. Those who don’t register will not be able to claim such a defence.

This is possibly against European case law. The protection of sources does not arise from the person who claims the defence, but from the act of journalism itself that merits the protection of sources for the delivery of the public good that is journalism. Therefore, courts always have to weigh this public interest with that served by the disclosure of sources; and not according to whether the person claiming such a defence is ‘registered’ or not.

Registration of editorial responsibility already exists in Malta under the Press Act. This serves little more than to establish said responsibility within a court of law when a plaintiff launches a defamation case. That this should be extended to the editor of a news website is not the issue at stake; what should be at stake is whether registration is even needed at all. Even a commenter on Facebook can be hauled into court for a defamatory comment, with the fact that Facebook is a user-generated content website not even considered for debate inside the court.

So registration should be totally separated from the matter of defamation. If the State wishes to encourage registration, it should do this against a properly vetted system of journalists who need official access to State events. In conjunction with the IGM – or a press council that would include the IGM – journalists can register themselves to a multi-tier system of registration, determined according to their status (whether they are full-time journalists dependent on the job for their livelihood, or less involved actors).

But inside a court of law, the confidentiality of sources should only be determined on the basis of Article 10 (2) of the European Convention of Human Rights.

All in all, however, we welcome a debate on this media law: though it would be preferable if both government and opposition conducted it without unnecessary hysterical overtones. This law affects communication, an important part of who we are as a society. It is too important to be sidetracked by parochial and partisan histrionics.