Malta’s new media Bill: the digested read

The Media And Defamation Act proposes mediation before court action, but higher moral damages and a new avenue for people to sue for libel 'on behalf' of deceased people

Kirk Douglas (left) in 1951’s Ace in the Hole, a film about a disgraced, cynical reporter hungry for the next scoop
Kirk Douglas (left) in 1951’s Ace in the Hole, a film about a disgraced, cynical reporter hungry for the next scoop

The law’s name

The law regulating libel and defamation will change from the Press Act to the Media and Defamation Act. The original law was passed in 1974 and amended several times over the years up until 2012.

New definitions

New or updated definitions have been added for author, broadcast, defamation (libel and slander), editor, printed words – which now include visual images that can be heard, perceived or reproduced and uploaded on a website – publication, and website, which now is defined as “any web-based service relating to news or current affairs that operates from Malta or in respect of which editorial decisions are taken in Malta.”

What constitutes libel?

Defamation must “cause serious harm or are likely to seriously harm the reputation” of someone who makes the claim. Gone are the Press Act’s provisions for “obscene libel” (public morals and decency), malicious news that “alarms” public opinion or disturbs the peace and creates “commotion among certain classes of people”.

Criminal libel will be abolished but criminal cases ongoing when the new law comes into force, will still proceed, and civil cases will also proceed under the old fines if they were beyond their second hearing. However, any decisions on the criminal libels will not be punishable by imprisonment of any form.

Mediation before court

When an action for defamation is filed, the Court will appoint a preliminary hearing within 20 days. During this hearing, the Court will decide whether it can decide summarily or allow the parties to reach an agreement trough an apology, with a maximum possible fine of €1,000.

In assessing the sum, the court will consider the gravity and extent of the defamation, whether the defendant exercised due diligence before publishing the defamatory matter, and whether the defendant made or offered an apology or public a clarification.

Apology before proceedings

If the defendant provided an apology or unreserved correction before the filing of the defamation case, moral damages for any ensuing court case will not be more than €7,000.

Higher moral damages in court defamation cases

The new moral damages in a court of law for defamation will now climb to €20,000 over the current €11,000. That means the cases will be heard in the upper courts by a Judge, and not in the Court of Magistrates.

An editor who refuses to publish a right of reply is liable to a €2,000 fine.

Incitement against President: fines increased

Under the Press Act, incitement to take away the life of the President is liable to a nine-year prison term and €1,164 fine: this has been increased to €5,000.

Defending oneself against a libel claim

Defendants will have to show that what they said or wrote “is substantially true” and even in cases where other statements they made were not “substantially true”, the defence still stands if such statements do not seriously harm the claimant’s reputation.

Honest opinion is defined as a statement of opinion, for which an honest person could have held such an opinion on the basis of “any fact existing at the time when the statement was published, and anything asserted to be a fact in a privileged statement published before.”

Has a privacy loophole been introduced?

Like the Press Act, a public person retains the definitions attributed in Article 12 –  public officers, candidates for public officer, political activists, those in a profession, trade or art, those in a position of trust.

In the Press Act, the truth of the matters charged “may not be enquired into if such matters refer to the domestic life of the aggrieved party”.

In the new bill, this has been changed to matters that “refer to the private life of the claimant and the facts alleged have no significant bearing on the exercise of that person’s public functions” – unless the public interest element is proved in court.

Protection of sources

The Press Act safeguards the confidentiality of sources, although this is not an absolute right and has its own limitations in serious national interest cases. Under the new media bill, the protection of sources will only apply in the case of editors, publishers, broadcasting services or websites registered with the media registrar and then only if the author habitually exercises the profession of journalist on a full-time or part-time basis.

This is perhaps the closest the law gets to a definition of a media worker in terms of the protection of sources.

Removal of precautionary warrants

The new media bill removes the power to issue precautionary warrants against any person for damages for libel or defamation.

Defamation of deceased persons

The new bill introduced an action for defamation of deceased persons if the defamatory statement is made within 10 years of their death and the action is filed by a parent, sibling, child or heir who must show that their “own reputation was seriously harmed or is likely to be seriously harmed by the statement or that the statement is such as would reasonably cause serious moral suffering to claimant.”

 

Publication on matters of public interest

If a statement published was part of an accurate and impartial account of a dispute to which the claimant was a party, the Court must disregard any omission of the defendant to take steps to verify the truth of what was being conveyed in the dispute, and make such allowance for editorial judgement.

Comment boards on websites

Editors can defend themselves from libel from comments if they show they are not persons who posted the statement on the website. Such a defence is defeated if claimants gave a notice to the editor on the statement, and the editor failed to respond to the complaint. Editors who moderate the statements can still avail themselves of this defence.

Removal order

A court that gives a decision on a defamation case can order the operator or editor of a website to remove the statement that is defamatory, or stop the distribution of material containing the statement.

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