The chilling effect of defamatory libel

The Bonello Commission on the Holistic Reform of the Justice Sector in measure 415 of its Final Report of 30 November, 2013 had recommended to government that the offence of criminal defamatory libel should be abolished from Maltese Law: ‘The Commission is of the opinion that with regard to press offences, the Press Act should be guided by freedom of expression. Such freedom requires that the punishment given should not be of a criminal nature but of a civil nature’.

In a recent judgment, Nadtoka v. Russia, application no. 38010/05, delivered on 31 May, 2016, the European Court of Human Rights (hereinafter “Court”) held that: ‘Ms. Nadtoka had been convicted as an accessory to the offence and ordered to pay a fine, so in that respect alone the measure imposed on her was already very serious.

However moderate, a criminal sanction was still a penalty and was liable to have a chilling effect on the exercise of freedom of expression. Furthermore, the Court noted that the amount of the fine imposed on Ms. Nadtoka was far from being insignificant.

The Court pointed out that the authorities had enjoyed only particularly limited room for manoeuvre, and concluded that the interference complained of by Ms. Nadtoka had not been “necessary in a democratic society” for the protection of the reputation and rights of others. There had therefore been a violation of Article 10 of the Convention’.

Ms. Yelena Mikhaylovna Nadtoka was acting editor-in-chief of the Russian newspaper Vecherniy Novocherkassk. An article was published in that newspaper where the words ‘some thievish man from Altay who has taken up a comfortable high position’ were written to refer to the mayor of Novocherkassk.

The mayor instituted a private prosecution against the journalist who penned that article and the acting editor-in-chief. When the case was heard by the Justice of the Peace, the journalist was fined 10,000 roubles and the acting editor-in-chief 50,000 roubles (equivalent to 1,364 euros). She was also found to be an accessory to the criminal offence. Although she did appeal the judgment, the Novocherkassk Town Court and, subsequently, the Rostov Regional Court, both confirmed the conviction.

Ms Nadtoka applied for human rights redress before the Court. She alleged that her criminal conviction constituted a contravention of her enjoyment of the right to freedom of expression as guaranteed by Article 10 of the European Convention on Human Rights and Fundamental Freedoms.

Applying the above Court judgment to Malta, the time is ripe to revisit Maltese criminal libel law to repeal defamatory libel ensuring that any action against journalists and editors is confined to the civil remedy. In this way, the ‘chilling effect’ referred to by the Court would be removed from Maltese Criminal Law.

The media will no longer be discouraged or deterred from publishing articles in the public interest which they would not dare to publish because of the sword of Damocles hanging over their head in the form of the offence of defamatory libel, which entails a maximum fine of €1,165. The latter offence was abrogated in England, the Maltese provision’s source.

Yet Malta still lags behind and press freedom continues to be threatened by defamatory libel. 

Professor Kevin Aquilina is Dean of the Faculty of Laws at the University of Malta