Constitutional court rules in favour of investigative journalists

Judge: ‘Journalists are not expected to provide incontrovertible evidence… This is the State’s obligation in criminal proceedings against the persons involved'

Two former editors of the Sunday Times of Malta have been awarded compensation, after a Constitutional court ruled that a judgment by the court of magistrates in a libel case, violated their right to freedom of expression.

Former news editor Ariadne Massa and former editor Steve Mallia were sued for libel by the Malta Union of Midwives and Nurses, over a 2010 article, which revealed that a nurse and a salesman were conning elderly patients into paying for tests which were available for free at public hospitals.

Judge Jacqueline Padovani Grima, presiding the First Hall of the Civil Court in its Constitutional jurisdiction, held that the editors were right to publish the article before receiving comments from the nurse involved, due to the urgency of the case in question.

The judge ruled that Massa's description of the nurse, as holding a managerial position at Mater Dei Hospital, occupying a “top post within the structures of the Malta Union of Midwives and Nurses” was a value judgment and not an attack on the MUMN committee.

A magistrate's court found in the MUMN's favour and ordered Massa to pay €10,000 and Mallia to pay €1,500 in damages to committee members.

During the seven years of court proceedings, Mallia and Massa’s bank accounts had been subject to a garnishee order. The court of Magistrates found for the plaintiff union, condemning Massa to pay €10,000 and Mallia to pay €1,500 in damages.

 

The damages were reduced to €4,000 on appeal in 2015, after which the union obtained garnishee orders, freezing the amount in their accounts.

The two editors filed a constitutional case against the Attorney General on the basis of a violation of their right to freedom of expression.

Massa testified, explaining how she received information that a nurse and a salesman were deceiving elderly patients and charging them money for tests that were available free of charge at local hospitals in 2010.

Massa said that she had been careful not to identify the nurse, instead describing him as “employed in a managerial position at Mater Dei Hospital and occupies a top post within the structures of the Malta Union of Midwives and Nurses” due to the fact that the nurse was the chairman of the Mater Dei Group Committee at MUMN.

The newspaper unsuccessfully attempted to obtain a comment from the nurse and had therefore chosen not to name him in the story. It decided to go to print as it felt that this was a story of public interest, she said.

In her judgment on the matter, judge Padovani Grima said freedom of expression constituted one of the essential foundations of a democratic society. She agreed that the matter was one of public interest.

“The court notes that journalists are not expected to provide incontrovertible evidence of the veracity of what they are reporting. This is the State’s obligation in criminal proceedings against the persons involved, and not that of journalists.

The obligations of the journalists is to verify the facts they report to a reasonable extent and when they publish, they do so in good faith, that is with the reasonable intention that the facts they report, after checking, are true.”

The journalist and editors involved in this case had clearly done so, held the court.

The press, said the court, needed to report on matters of public interest and the public had a right to read their reports or it would be unable to perform its vital role of public watchdog.

The judge said that, according to the European Court, if a restriction on the right of freedom of expression was to be deemed justifiable, it had to result from law, be legitimate and be necessary in a democratic society.

The article was in the public interest, as it dealt with alleged fraud. The public was not only interested in the hearing of such cases but was entitled to. That the article was of public interest was clear from the Health Minister immediately ordering an investigation.

Judge Padovani Grima added that the newspaper had done the right thing in going to print before receiving comment from the nurse involved, as this was a case which had to be dealt with urgently.

The court concluded that the article was not an attack on the committee members and that the use of the phrase “top official” when describing the nurse was a value judgment made by the newspaper.

Were the article to be considered libelous towards the committee members, this would create a “chilling effect” on local press, causing journalists to think twice before publishing investigative articles out of fear of libel damages.

Massa and Mallia were awarded €2,000 each by way of compensation.

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