No relief for Independent over erroneous Caruana Galizia claim on HSBC falsification

The Court of Appeal has confirmed a judgment condemning the Malta Independent and its online edition to pay €5,000 in libel damages to the prime minister’s chief of staff Keith Schembri, and his business partner Malcolm Scerri.

The defamation case was originally filed after two articles entitled ‘Panama Papers: HSBC investigation expected into alleged fraudulent documents vouching for Keith Schembri and Malcolm Scerri’ and ‘Probe expected into alleged fraudulent documents vouching for Keith Schembri, Malcolm Scerri’, were published in May 2016.

The suits were filed against former editor Pierre Portelli, as well as David Lindsay and Stephen Calleja.

The articles were follow-ups to claims by the newspaper’s columnist Daphne Caruana Galizia, that HSBC Bank Malta would launch an investigation into the possible fraudulent presentation of documents concerning Schembri and Scerri.

READ MORE | HSBC drop-down menu blunder that sparked Panama falsification ruckus

Caruana Galizia had claimed that reference letters issued from HSBC’s Attard branch, months after it had ceased operations, were fraudulent. But the bank had insisted that the Attard address was the result of a computer glitch in the drop-down menu listing the bank’s branches, and that it had no intention of probing the matter since the authenticity of the quoted documents had been confirmed.

Tempered by this clarification, the Malta Independent was first to back down, saying it was “now satisfied that in this matter no wrongdoing can be attributed to Mr Keith Schembri and Mr Malcolm Scerri, or their financial consultants Nexia BT.” But Caruana Galizia stood her ground, saying a former senior bank executive told her there was “no way this specific template could have been retained in the system, still less used ‘by administrative error’.”

In October 2018, Magistrate Francesco Depasquale awarded €5,000 in libel damages after the newspaper carried the allegations.

Madam Justice Joanne Vella Cuschieri upheld the judgement in her decision on an appeal by the newspaper.

“Readers… were led to believe that the mentioned ‘investigation’ went far beyond the verification as to why one address and not another were printed on the letters of recommendation, so much so that even the comments showed that the reader had ‘conveniently’ been led to believe much more than this – and the fault for this lies solely with the appellants who made Daphne Caruana Galizia’s article their own, by giving an appearance of confirmation of the allegations mentioned in it without giving all the acts known to them particularly the information that it was probably just an administrative error.”

The Mata Independent had also allowed commenters to publish defamatory claims “without being in any manner controlled or censored prior to publication,” the first court noted, something upheld by the Court of Appeal.

Ruling that the amount of damages awarded was also justified, the court said the imposition of such high damages should serve as an “eye-opener” to all those in the appellant’s position. “Nothing justifies the bad and malicious use of the services which they offer, including the comments which are left online (even if written by third parties).”

The principle of freedom of expression is not to be interpreted as an unlimited licence to sully reputations “without any factual basis”, said the court.

Just last week, the same court, differently presided, overturned a sentence imposed on the newspaper over the same article in a case filed by Nexia BT auditors Brian Tonna and Karl Cini, saying the fact that the press was commenting and asking questions was “beyond legitimate.”

Tonna welcomed the decision of the Court of Appeal, which overturned the Court of First Instance’s decision that the article published by Nazzjon, was libellous especially when considering the scenario portrayed through the comments published below the article.
 The Court awarded €6,000 in damages to Nexia BT on the basis that the accused had the malicious intent to lead the newspaper’s readers to believe the false assertions of fact in the report. The Court deemed the newspaper Nazzjon, to have gone beyond their rights to freedom of expression when attempting to tarnish the reputation of Nexia BT with such false claims.