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Another little step to stifle press freedom

Xarabank gagging order set a precedent which might to more limits on free speech

Xarabank is not the most defensible programme out there. If anything, it embodies populism and prescribes doses of shock and scandal in a setting that is anything but conducive to healthy debate. If the tabloids were on a television programme, it would be Xarabank.

The most popular national programme has a lot of fans. But even if you think the concept of Xarabank should be buried under a dome of concrete as you would to contain any other nuclear meltdown, there’s no denying that the right for Xarabank to air is the same right under which European citizens can seek redress of its infringement in Strasbourg.

When Xarabank is told it’s crossed a line, even if it does not have public sympathy, that line deserves scrutiny.

Magistrate Joe Mifsud, reputable for his theatrical tendencies in court, has taken a fairly popular decision to block an interview with Liam Debono. Debono was charged with an array of offences from drug possession to the attempted murder of police officer Simon Schembri, for which he gained instant notoriety.

The spotlight which was shown onto the case was intense. The media covered every court appearance in the criminal court relating to Liam Debono. Social media was ablaze with outrage. People from all walks of life condemned the 17-year-old and expressed solidarity with Schembri. 

The government, through a tweet written by MEP Marlene Mizzi, suggested civil society was to blame for fostering violence in society. Simultaneously, a march was organised in solidarity with the corps for which President Marie Louise Coleiro Preca was present. Debono’s lawyers are claiming this was a breach to his fair trial.

In reaction to Joe Mifsud’s gagging order, very few have objected. Popular opinion is with the magistrate on this one. One reason mooted is that it disrupts the due process of the trial and instead promotes a trial by media.

This assertion is flawed. Firstly, the press has been covering court cases for decades. There are options the court can take for the protection of the parties. Inter alia, the case could have been heard behind closed doors. Procedural experts could mention more.

Secondly, the mainstream press is not to blame for any institutional faults. Marlene Mizzi had speedily blamed peaceful protests for fostering contempt against the authorities. But the authorities are the best placed to make amends if outrage is being sparked. If the public is furious at politicians’ misconduct, for which a plethora of examples can be mentioned, citizens are not to blame. 

Should the interview air while the case is still ongoing, it wouldn’t make a spec of difference. Against the backdrop of the avalanche of condemnation bestowed upon Debono so far, suggesting that an interview about his life would have swayed a juror is disproportionate.

Worth noting is that the claim of a trial by media is ironic. The underlying reasons for Mifsud’s support were that Debono is scum, and that efforts to humanise him are unwarranted. But would it not have had to be the media to construct Debono’s abysmal image in the first place? How else would the facts (and subsequent opinions) have reached audiences?

Despite Xarabank being a cesspit of populism and noise, Peppi Azzopardi, the presenter, makes a good albeit generic point: society failed Debono. He was often let off the hook when as a juvenile, his case ought to have been looked into before it aggravated. 

Unfortunately, it did. For the Roman crowds at the Colosseum, no remorse is due to the fallen.

The public policy points under which the gagging order was sanctioned are worrying. The Attorney General unleashed not-so-subtly on the press, accusing them of swooping to ethical lows. 

The legal justification underlying this stems from the common law doctrine of adhuc sub judice li est, or the sub judice rule. It was transcribed in statute in the UK in the Contempt of Court Act 1981. 

The legislation operates under a strict liability regime, but the threshold is high. The “rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”.

Against the backdrop of all that has already been said about Liam Debono, one interview seems like a drop in the ocean. It isn’t reasonable to think that it creates the substantial risk required. 

But even outside the sub judice rule, fundamental rights are at play. The main concern is that the gagging order is unprecedented. With public opinion harbouring animosity against Debono, it’s easy to miss Mifsud’s decree as a step to stifle press freedom. 

The Attorney General’s justification was low journalistic standards. When the Sunday Times appealed to the European Court of Human Rights, the UK Government defended the sub judice rule. It argued that it was “the public interest in the fair administration of justice”. 

But Strasbourg rejected this. Yes, the interference with the press’s freedom was prescribed by law and served legitimate aims. But the jurisprudence suggests the test applied in cases like this is different. It looks towards a test Malta would do well to note from time to time: whether the order is “necessary in a democratic society”.

Press freedom has already taken a hit, most notably through the murder of Daphne Caruana Galizia, who was blown up for her investigative work into high-level corruption and criminality. Setting this precedent might allow for more limits on free speech. 

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