Journalist who published Eurovision-related exchanges from Yorgen Fenech's phone will not face contempt proceedings

The magistrate compiling evidence against Daphne Caruana Galizia murder suspect Yorgen Fenech has declared that she will not be instituting contempt of court proceedings against Times of Malta journalist Jacob Borg after he published excerpts of chats between music producer Anton Attard and Yorgen Fenech in 2019, in which Attard asked for help to improve the Eurovision odds being given to a contestant chosen through Attard’s show X-Factor.

Fenech’s lawyers had filed a court application on June 8, demanding that the journalist be found in contempt of court over the article which was published on May 30.

In her decree on the matter, Magistrate Rachel Montebello observed that Borg was already the subject of ongoing contempt of court proceedings over the alleged breach of a ban on the publication of data extracted from Fenech’s mobile phone, back in March.

After seeing the acts of the case, the court said the messages reproduced by Borg in May article "appeared to form part of the data extracted from [Fenech’s] mobile phone and exhibited in court."

The magistrate emphasised her order not to publish the contents of the data extraction, saying this order was “truly intended to safeguard the integrity of the acts and the evidence forming part of the criminal process and above all the fundamental rights of the accused in criminal proceedings, and therefore the protection of the interests of justice.”

The publication of the private communications was “undoubtedly capable of prejudicing the interest of the criminal justice process in regard to the person accused,” said the court.

Magistrate Montebello said that it was “certainly not up to the court to protect the interests of those who breach its orders…under the pretext of exercising the right to freedom of expression. To the contrary, it is the duty of this court to see that the rights of the accused are not prejudiced and to ensure that the orders it gives in the best interests of the administration of justice are respected.”

The publication of material subject to a court ban “was not investigative journalism and neither was it justifiable as an exercise of the right to freedom of expression, which…is subject to restrictions in the public interest.”

“In this case, the public interest which needed protection…was not the right to publish exchanges of messages between the accused and third parties in connection to the Eurovision song contest,” said the court, adding that it “could not identify any element whatsoever of public interest.”

However, observing that no harm had been made to the interests of justice or the accused as a result of the publications, the court said it would not be taking further steps against the journalist.

To avoid all doubt, the court repeated that it was making clear that no publication of the content of the data extractions from Yorgen Fenech’s mobile, including messages and other communications was permitted and that disregarding this order would constitute contempt of court.