By obfuscating the very definition of freedom of expression, incumbent politicians stand to gain to the detriment of our fundamental rights. European Court of Human Rights (ECtHR) Judge Vincent De Gaetano, describes this as ‘the erosion of democracy’ in which truth is under siege, in a piece he penned for law journal Id-Dritt.
De Gaetano argues that the rights and freedoms of citizens are afforded to them in light of the values on which the ECtHR is founded. He cites an ECtHR decision that places politicians at the receiving end of citizens’ opinions, rather than being the ones manufacturing public opinion.
De Gaetano warns that the rights and freedoms enshrined in the Convention are frequently snubbed, especially by politicians. As politicians are primarily after votes, he argues, populism takes precedence over truth.
This does not mean that politicians should not be protected. The Article 10 right to free speech is not absolute; certain derogations under Article 17 are allowed, as long as these address a “pressing social need” which is “necessary to a democratic society”.
Additionally, there are the requirements of necessity and proportionality. SLAPP lawsuits, for instance, should they be prescribed by law, would fall well outside the ECtHR’s definition of proportionality.
Protecting reputations should not come at the expense of crippling an entire news agency. In his article, De Gaetano explains that different rights cannot cancel each other out; instead, they should be consolidated in such a way that is most beneficial to a democratic society.
In fact, political discourse has been afforded the highest protection by Strasbourg, which has concurrently refused to grant States much derogation in this regard. Nurturing a fertile climate that fosters critical thinking, free thought, and the exchange of ideas is not only desirable, but necessary for a democracy. That this Labour Government seeks the homogenisation of public opinion, conveniently marketing it as ‘unity,’ goes against this doctrine.
The legal world is a complicated place. The fundamental human rights which have guaranteed our dignity are easy to understand, but not to apply. That is why the Grand Chamber of the supranational ECtHR has 17 seasoned judges.
When the term ‘freedom of expression’ is thrown about recklessly to justify irresponsible statements and hate speech, the meaning of ‘freedom of expression’ needs to be carefully revisited.
In Malta, misconceptions on human rights are rife even in the courts. Giovanni Bonello, who was a judge in Strasbourg for over a decade, penned a series of articles on the Constitution. In one of them, he criticised the courts for misunderstanding the nature of human rights by making them enforceable against individuals, going against the “ABC of human rights law”.
If the waters have been muddied in the courts, the politics are a dense swamp.
The government accuses journalists and the Church of impinging its freedom of expression. This is absurd, especially in a situation where the government has almost total dominance over mainstream and social media. Only the State is responsible for ensuring that human rights, including freedom of speech, is upheld.
Lambasting the Archbishop for not upholding freedom of expression is wrong. While the Maltese government has an obligation to safeguard the Article 10 right, no other body has that responsibility.
If a political party member was told not to voice his dissent in public, it is not so much a human rights case as it falls subject to the rules of the organisation the member signed up to on his/her own volition.
This is the sort of populistic manipulation of which De Gaetano is vigilant.
The Mark Montebello case came in the shadow of a massive report of systemic hate speech in Labour secret online groups. The Curia had to clarify it never issued any instruction to silence Montebello after a campaign fuelled in these online groups to pin this on the Archbishop. The lies continued even after the clarification was made.
As opposed to the Church or third parties, when the government mobilises and encourages its supporters to attack and subdue critics, it is very much a human rights issue. To date, not a single administrator or member of the 60,000-strong network has been so much as questioned for inciting violence.
The government has proven it is vehemently opposed to dissent, despite claiming it favours dialogue. Labour MP Glenn Bedingfield was already a threat to the freedom of critics to voice their opinions. That the systemic vilification of citizens is encouraged and abetted by the authorities takes this to a whole new level.
An ECtHR judge warned that the wilful assault on freedom of speech is the death knell of democracy. Politicians have a duty to be transparent and accountable, and a duty to inform and educate citizens not to manipulate and attack them. The fact that this must be spelt out is a sign of our times.