Media law: bigger than just one person

On Tuesday, Labour MP Franco Mercieca gave a revealing speech about the motivation behind one of the bill’s more controversial aspects. He claimed that increasing the penalty for civil libel from a maximum of €11,000 to €20,000, was aimed at “preventing [blogger Daphne Caruana Galizia] from publishing false and damaging stories.”

“How can it be that Daphne Caruana Galizia ruins people’s lives but gets away scot-free because the courts only fine her €5,000, which she then gets to contest and perhaps only pay several years down the line?” he asked.

The question itself may be of great concern to Mercieca and his friends who think likewise... but it has no place in a debate about an article of legislation that has far broader ramifications for the media landscape than its possible effect on one blogger. Indeed, his is a dim view of what the defamation law is about.

The reality is that this law will be applied to all media, and will continue to apply even in a distant future where the players are different from today. It is short-sighted to base the details of such an important law on what is ultimately a private, personal grievance. 

Nor is it really acceptable that a government moves to enact legislation with the declared aim of silencing one of its foremost critics... however distasteful or reprehensible that critic’s methods may be. 

It is a pity that the debate has taken this turn, because there is much in the proposed bill that needs to be discussed in depth.

As a newspaper, we welcome the spirit of a media bill that seeks to remove criminal libel as well as introduce a preliminary hearing for defamation cases. But we do not agree that increasing civil damages to €20,000 – and by extension, taking defamation cases into the superior courts – serves as a proper counter-balance to the newfound freedoms of the bill, such as removal of criminal libel.

If this bill is intended to further freedom of expression, the legislator should not increase damages, nor take defamation cases to a higher court which would involve higher fees for respondents as well as higher fees for appeals. We agree that a fair compromise is the proposed €15,000 damages meted out by the Court of Magistrate. Moreover it is debatable to what extent replacing the current Magistrate, who has now achieved a level of expertise in hearings of defamation cases, and has built a solid bedrock of case-law on the subject, would help the case of newspapers.

Nonetheless, improving freedom of expression in Malta should be guided by a bias in favour of responsible journalism and against vexatious and frivolous libel suits. To that end, a preliminary hearing should have the aim of resolving an alleged grievance of defamation by way of arbitration, as well as determining whether that grievance is indeed justified. The law should empower the arbitrator to declare whether a grievance does not have prima facie justification to be considered as being meritorious for arbitration or a defamation proceeding.

Arbitration must not be allowed to stray from the principle of ‘innocent until proven guilty’. The system must not automatically shift the onus of proof onto the defendant, but demand that plaintiffs make a reasoned case as to whether defamation has occurred, and how.

We understand that the decision by the arbitrator, as proposed, is not final and that plaintiffs remain free to pursue claims in court if dissatisfied with the preliminary hearing. In such cases the Magistrate should be expected to take the arbitrator’s decision into consideration. There is room to argue that a plaintiff’s decision to proceed beyond a preliminary hearing could itself be penalised, if a defendant – a newspaper – would have already amicably accepted to resolve the claim.

This same spirit should also guide the judiciary in according the rightful damages to plaintiffs in defamation cases. A court of law should take into consideration whether the act of journalism that created libel was intended at creating a malicious falsehood or not. The court should not inflict maximum damages for a libel that was not borne of a malicious falsehood... but, for example, was based on true facts but reached an erroneous conclusion.

Above all we disagree with a mooted proposal to inflict fines according to the economic strength of the defendant: in this case, defendants who may be not financially strong and who commit the greatest libel could end up paying less in damages than a responsible profit-making newspaper whose libel might have not been dishonest. The law courts must judge the extent of fines on the manner in which the libel was generated, and on the realistic damage the plaintiff’s reputation would have sustained.

Now that the proposal for mandatory registration of websites has been removed, we welcome the proposal to retain press registration on a voluntary basis through a media registrar at arm’s length from the DOI. We also welcome the pronouncement that confidentiality of sources should not just be a professional privilege, since many acts of journalism can happen outside of the trade itself, by regular citizens on various online and offline fora.

We believe that a new Press Council – comprising of retired members of the judiciary, the Institute of Maltese Journalists, representatives from the industry and press workers – should take on both the role of press registrar, as well as organise the press ethics commission currently under the patronage of the IGM. With adequate state financing, this Council would act as the vetting arm for press registration as well as an arbiter for press complaints, with legal standing. 

Lastly, digital issues should be dealt with other legal tools: among them the digital rights bill and the Electronic Commerce Act. Above all, judicial oversight must be the guiding principle in any aspect that would require an enforced take-down of defamatory material... not the instruction of a politician.