Upon delivery of a court judgment on Thursday that has since been widely criticised, the actor and Occupy Justice activist Pia Zammit found herself aggrieved a second time.

The first time was when the Labour Party leaning newspaper It-Torca published two articles last year that created controversy around a picture of Zammit taken backstage during a play.

Zammit had been playing the part of a French anti-Nazi resistance fighter in a play 11 years ago. The picture at the centre of the controversy was taken either during rehearsals or prior to a performance. Ten years later It-Torca took the picture from a WhatsApp chat group and wrote two stories that questioned the appropriateness and sensitivity of Zammit’s treatment of the Swastika.

The articles were put in the context of Zammit as an activist – in fact the journalist, Victor Vella, contacted Occupy Justice for comment – whipping up controversy by juxtaposing the imagery of Zammit as a rule-of-law activist with Zammit with the Swastika symbols.

Zammit sued for libel. Yesterday she not only lost but was ordered to bear all legal costs, including the costs of It-Torca’s editor.

One of the main themes of the judgement of magistrate Rachel Montebello was that the picture and its publication on Facebook was bound to generate controversy.

“It is obvious,” the judgement goes, “that in this pose the actor was inevitably exposing herself for some form of criticism, particularly since one considers that there are people in various sectors of society who have lived through, or remember or have some form of ties with the sufferings brought about by the massacre and genocide of the Nazi regime. This in itself is sufficient for the picture to be considered as having an element of controversy.”

Yet the picture came to be in a context: it was taken backstage in a spirit of travesty and mischief, and open to an alternative interpretation of making mockery of the Swastika and as such not insensitive to victims of Nazism.

The judgement says that once the picture is in the “public domain [a colleague of Zammit had put it in an album on Facebook], the plaintiff [Zammit] had to expect a grade of criticism for lack of sensitivity for the tragic memory that can be evoked by the picture as was taken, and this is independent of [read: irrespective of] of the context in which it was taken.”

Yet context is everything in this case: the context of the picture, as well as the context of the articles in It-Torca. The articles were not about the artistic licence of the picture, or the appropriateness of an actor jokingly flaunting historically sensitive imagery in a grotesque manner (on-stage or off-stage).

The first article particularly mostly served to position the potentially controversial picture next to Zammit’s activism on rule of law and justice for slain journalist Daphne Caruana Galizia.

In that sense, whether intentionally or whether in effect, the articles created a dynamic that led to disparagement of Zammit-the-activist. No one cared about Zammit-the-actor, the picture had sat unnoticed on her colleague’s Facebook album for many years before it was picked up by someone who started sharing it.

It is reasonable to assume that no article about this picture would have been written if Zammit had not become an activist.

In fact, it’s her activism – not the pose in which she took the picture, or the picture itself – that made her a target for those who started sharing the picture on WhatsApp which then came to the attention of It-Torca. Then, It-Torca chose to write about it and in the process amplify the so-called controversy.

Montebello’s judgement also says that the picture “can reasonably be considered controversial because the joking pose of the plaintiff holding the Swastika is objectively insensitive and because there is an element of irony when this picture is put in a context of the plaintiff as a person involved in the administration of Occupy Justice”.

The words “objectively insensitive” stand out. By what logic, or what measure of objectivity, or what legal rules or parameters, can the picture, the pose, and the context be considered “objectively insensitive”? Or is the term stitched together – objective insensitivity – to give this part of the judgement a stamp of authoritativeness?

In any case, perhaps the point that merited more exploration in this judgement is something that the magistrate made early on before going into opinion and longwinded value judgements. That was the point of “serious harm”, a new concept introduced in the libel law enacted on 14 May 2018. It has raised the bar for libel to that which “cause[s] serious harm or are likely to seriously harm the reputation of the specific person or persons making the claim.”

This concept is still being tested in court, and in this case – as well as an earlier case brought by Parliamentary Secretary Rosianne Cutajar and decided in her favour by the same magistrate on 24 September – the test of libel had to surmount the bar of serious harm to be successful.

The case of Cutajar was over a Facebook slur that she somehow represented “call-girls” and “prostitutes” in parliament, and Montebello decided in her favour and awarded her €300 in damages – the low amount reflects the serious harm criteria. The question here was whether certain character slurs or rants that would be widely perceived as partisan-driven would in fact constitute serious reputational harm.

The decision went differently in the case of Zammit, and this may yet be tested again in a higher court if she chooses to appeal.

Irrespective of the serious harm test, the writings in both cases were in bad form or in bad taste. In the case of the articles on Zammit on It-Torca, these articles were in keeping with the tendency of political party media to target political opponents given half a chance.

Ironically, this is exactly the reason why the case might fail on serious harm. It-Torca did publish Zammit’s statement made in response to questions, and the so-called ‘ordinary reader’ could perceive the articles as propagandist and partisan, using a ten-year-old picture and amplifying a so-called controversy that had been playing out among a narrower audience on WhatsApp.

Yet even if the magistrate had to judge that libel failed on the serious harm test in the case of Zammit, the bad form or poor journalism of the one or two articles in It-Torca could have offered the motivation for the magistrate to deviate from the standard practice in the apportioning of the costs of the case.

Burdening all costs on Zammit, on top of losing the case, not only caused an additional grievance, it also sends the wrong message to partisan press, as well as society in a wider way. Potential activists can get the message that any political activism would set them up for personal attacks over something silly or nonsensical, and the court would offer no sense of refuge or remedy.