Harsh libel judgments are a disservice to journalism in Malta

The high financial damages inflicted on The Sunday Times of Malta in a libel judgment three weeks ago caps two other recent judgments in which courts have imposed higher damages than historical norms.

Aside from reaching higher ranges of non-pecuniary damages, the three judgments also stick out for their uncompromising demands on journalism and their lack of consideration of the trials of journalism.

Legal provisions cap damages at €11,646, and libel damages in print media have generally and historically been set at under €5,000.

In the case of The Times of Malta three weeks ago, the plaintiff was awarded €9,000. In another case last year, The Malta Independent was slapped with damages of €5,000, and in an earlier case – which was eventually overturned by a higher court – involving a series of articles written by Caroline Muscat, The Shift’s Managing Editor who then wrote for The Times of Malta, damages were set at €10,000.

Here’s an individual analysis of the three judgments from oldest to most recent.

Patrick Dalli vs Caroline Muscat

The court of first instance, presided by Francesco Depasquale, who has since been appointed Judge, took a strong line on the supposed protection of the privacy of an individual.

Although this judgment was woven with instruments of the old law which was more sensitive to the protection of a private person (in the new law the pleadings of a private person have been narrowed) the court became oddly fixated on the logic of privacy.

The court even maintained that private persons had to be protected from journalistic intrusion allegedly intended to “indirectly attack” their politician spouse – in this case, Patrick Dalli is the husband of then Minister, now European Commissioner, Helena Dalli.

The sentence also alleged that the journalist’s intention was to taint Mr Dalli’s reputation and that a development application had subsequently been rejected because the adjudicator had been “conditioned” by the series of articles. These lines of reasoning are incomprehensible without supporting evidence.

This judgment was eventually comprehensively overturned on appeal by Judge Anthony Ellul. In one of the sharpest repudiations, Judge Ellul said that the supposed conditioning of the Planning Authority in rejecting the development application was mere “speculation of the plaintiff that unfortunately and unjustly the court of first instance took on board”.

Judge Ellul then revoked the damages awarded by Depasquale and ordered that the costs of two cases be borne by Dalli.

Read: On the journalist’s duty to scrutinise those in power… and their spouses

Keith Schembri and Malcolm Scerri vs Pierre Portelli

In another judgment of Francesco Depasquale, the court of first instance imposed damages of €5,000 on Pierre Portelli in his capacity as Content and Business Director at The Malta Independent.

The article had hinged on a letter issued by HSBC bank which was taken as an indication of wrongdoing in the article. It eventually transpired that it was merely an administrative error by the bank, which had put the wrong address on the letterhead – an address of a branch that had been closed down.

The case against The Malta Independent was mostly predicated on two points: the distinction between ‘review’ and ‘investigation’ (the newspaper had written of an ‘investigation’ into the alleged wrongdoing, while the bank had merely carried out an internal ‘review’), and the various defamatory reader’s comments posted under the article put online.

The sentence was appealed, and the Judge hearing the appeal, Joanne Vella Cuschieri, built her own judgment delivered last October on two chief points that had already been emphasised by the court of first instance. She said the testimony of the bank’s Head of communications showed that Portelli had been informed that there was prima facie evidence of an administrative error and yet the information had been omitted from the article.

Judge Vella Cuschieri said that the story would have lost its value with that information and that the newspaper’s omission amounted to malicious intent.

She also held that the libellous reader postings online served to amplify the defamation, and the newspaper’s failure to remove those comments was another indication of malice. In that sense, she agreed with the first court that this should be an “eye-opener” – and hence upheld the relatively high damages of €5,000.

There are two issues with this judgment. First, the assertion that the newspaper’s failure to remove libellous comments was malicious. Newspapers until some time ago omitted to filter online postings by readers for a variety of reasons – ignorance and negligence of legal liability, limited human resources, and perhaps also because such comments do generate traffic. To say that the newspaper’s intent was malicious may be gratuitous within this context, although there was no doubt that the comments in themselves were defamatory.

Second, the court’s assertion that the newspaper maliciously omitted reporting that the bank had told it of a prima facie indication of administrative error prior to publication of the first article is not supported by evidence. The judgment holds that this emerges from the testimony of the bank’s Head of communications, but scrutiny of the transcript of deposition by The Shift found no indication whatsoever that the Head of communications made contact with Portelli prior to publication of the first article (on 8 May 2016).

The wrong assessment of evidence in both judgments may have fundamentally altered the outcome.

Philip Sciberras vs Ivan Camilleri

In this judgment, Magistrate Victor Axiak deemed the article libellous for reasons explained in a thorough and coherent analysis in which the point was made that the article in its entirety and import was defamatory.

The magistrate quoted jurisprudence into “what the words in their context may be taken to convey” and “the inference to be drawn from them”, making a convincing case for the article being defamatory.

Among the jurisprudence invoked is this line: “A writer of libellous matter sometimes seeks to excuse himself by saying that he believed in the truth of the imputation; but this belief – however honest – is wholly irrelevant in regard to deciding upon liability, although such belief may be of value as evidence in mitigation of damages”.

Another mitigating factor is the fact that the journalist did contact the protagonist with questions, and he – former Judge Philip Sciberras – did not engage in the conversation or answer any questions.

This is crucial because journalists do not have the power of arrest and interrogation of the police, or the power of the court to summon an individual to testify under oath and threat of imprisonment. In journalism, what the protagonist says or omits to say, or how he reacts when approached, is part of the process of research and verification – and part of the story.

Yet the court took little heed of this, arguing that the journalist cannot “rely on what the story’s protagonist says or doesn’t say.”

Granted, but it’s a mitigating factor. Besides, the article might have been different if the protagonist had answered questions, and the matter might not have escalated to a libel lawsuit.

The court missed an opportunity to call out the tendency of individuals or organisations to avoid or ignore journalists’ questions and then, once an article is published, take issue with what is published.

Often, these individuals or organisations then send the infamous Right of Reply provided for in the law, something that could allow them to have the final word, without question.

This is tied to the question of access for journalists in Malta. Many entities, mostly government ministries, as well as a variety of public figures, do not reply to questions made by journalists in the course of research. The Shift has even recently been embroiled in a battle to be put on a mailing list of official press schedules and government events to be able to ask questions to Ministers who ignore emails with questions sent.

Restricted access, including not replying to questions, is a hindrance to journalism. It is also unfair that the subject of the story then responds with a Right of Reply under threat of legal action, or proceeds with legal action.

Journalists are obliged not to publish anything libellous, but every public figure and entity is equally obliged to reply to legitimate questions by journalists. The judgment in this case does not strike a balance between those two obligations, as reflected in the extraordinary high damages set at €9,000.