Artistic freedom in the dock as satirist faces court action in Yorgen Fenech case

The author of satirical news website Bis-Serjeta faces up to a month’s imprisonment and a fine of €2,329 after magistrate Rachel Montebello last week ordered the court registrar to initiate court proceedings over a satirical Facebook post.

The magistrate, who is presiding over the compilation of evidence in the Yorgen Fenech case, ordered court action after Fenech’s lawyers complained about the post.

The post on the Facebook page of Bis-Serjeta depicted a photo collage of four of Fenech’s lawyers, with Fenech featured at the centre, and the caption underneath that read: “Government urges people not to be rude to mafia lawyers”.

The magistrate also simultaneously ordered similar action against university lecturer Simon Mercieca following separate complaints by the Attorney General over blogs allegedly disparaging the Deputy Attorney General, who is prosecuting.

In an unusual deviation from procedure, the magistrate did not notify the prosecutor and parte civile lawyers about the legal application filed by Fenech on 16 December for their respective replies.

In the twelve-page decree, which caught everyone by surprise at the end of the last court hearing, Montebello justified the order for court proceedings against Bis-Serjeta and Mercieca partly to protect the lawyers (as “officers of the court”) from attacks or insults, and partly to “safeguard [Fenech’s] right to a fair hearing”.

Legal sources consulted by The Shift said the caption on the Facebook post by Bis-Serjeta  is a play on words that does not suggest that the lawyers themselves are “mafia” – as such the post seems devoid of elements that would make it illegal, especially since it’s published on an identifiable satirical site that is not supposed to be taken seriously or literally.

In a case decided in 2015, the European Court of Human Rights (ECHR) said: “The protection conferred by Article 10 [freedom of expression] also applies to satire, which is a form of artistic expression and social commentary and which, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Accordingly, any interference with an artist’s right to such expression must be examined with particular care”.

The ECHR then further emphasised the importance of “context” in deciding upon a particular case.

The author-cum-publisher (it’s a one-man operation) of Bis-Serjeta told The Shift when contacted that he had created the post in response to the furore over messages, replete with expletives, that National Book Council chairperson Mark Camilleri had sent to one of Fenech’s lawyers.

The messages had led to calls for Camilleri’s resignation by the permanent secretary at the Education Ministry, a request that was withdrawn by Minister Justyne Caruana after he apologised for the language he used.

In its slogan, Bis-Serjeta promises “serious journalism in a satirical country”. The author is part of the satirical brand: his fake picture is set against the Kremlin and features a grotesquely fake moustache, Russian wintry fur hat, and dark suit; he goes by the pseudonym of Karl Stennienibarra.

Contacted by The Shift, the author was surprised at the prospect of being taken to court by the registrar – if the case gets to the civil court, the registrar would be the plaintiff and the author would be the defendant.

When speaking to The Shift, he requested his real identity to be withheld because the satirical elements would be undermined. The Shift is acceding to his request.

Asked for comment, he said: “Essentially all I have to say at this point is that if we want to be the kind of country that prosecutes satirists, then so be it”.

As for the other person set to be taken the court, Simon Mercieca, sources have told The Shift that the Attorney General presented three allegedly offensive blogs in her note to the court.

This is set to be the second time that Mercieca will face court action over contempt of court. On the previous occasion, he published recordings that had been heard in a closed court and whose broadcast was explicitly banned by the magistrate.

A trawl of Mercieca’s website yields about half a dozen blogs which feature the Deputy Attorney General Philip Galea Farrugia, who is prosecuting. Mercieca’s blog bears the slogan of “a site containing other viewpoints on current affairs.”

Mercieca’s blogs are stinging and personal, and selective with facts. In one blog, he distorts an article that appeared in The Shift to make insinuations on Farrugia.

In another blog, after Farrugia had reacted with a Facebook post accusing Mercieca of being a “liar”, Mercieca starts the blog by writing that “as promised” he would keep writing “posts about him [Farrugia].” He added: “I am doing this to show him that his posts do not scare me.”

Irrespective of the content of the material in both cases, legal sources have told The Shift that the contempt of court proceedings for material published about the lawyers outside the court are misplaced. If the lawyers felt disparaged, the proper recourse would have been a libel lawsuit, not contempt of court proceedings, which are much narrower in scope.

In another controversial point, the magistrate wrote that only “the media, [and] not private persons” are to report on what is divulged in the course of court proceedings – a distinction that has no basis in law. Although this part of the decree is instructional, not founded on actionable legal provisions, it is likely to have a chilling effect on journalistic coverage of stories associated with Fenech.

                           
                               
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Godfrey Leone Ganado
Godfrey Leone Ganado
3 months ago

A picture of ‘hogwash’ should replace the George Cross on the National Flag.
Also, a notice should be placed at the entrance to the Courts, reading: ‘look high, just in case you get stained with pidgeon droppings’.

Austen Lennon
Austen Lennon
3 months ago

I know you are being satirical but long may that George Cross be there… the Maltese people are my heroes and so deserve that tribute but, again, I understand that you are being satirical. 🙂

Godfrey Leone Ganado
Godfrey Leone Ganado
3 months ago
Reply to  Austen Lennon

I still remember the days when writing was an art, and we proudly addressed our letters/postcards from abroad, with our address ending with Malta GC.
Incidentally, the person who received the George Cross on behalf of Malta, was Sir George Borg, grand uncle of my wife.

KD Far
KD Far
3 months ago

The Court should focus more onto its work than face legal proceedings on satirical sites as ‘Bis-Serjeta’. Who follows the page knows that it is 100% satire that is there to provide a smile rather than to cause harm to someone. If these lawyers felt offended then they should have filed a libel suit, which still in my opinion would have been futile. Satire is satire and let us stop there.

The move by the Court is putting pressure on the freedom of expression of the public in a way where the common public is feeling threatened even if one makes a comment on such a thread! This is unconceivable!

Martin Schranz
3 months ago
Reply to  KD Far

How is it satire if it’s true? The only crime this site should be charged with is that of not being funny.

Last edited 3 months ago by Martin Schranz
KD Far
KD Far
3 months ago
Reply to  Martin Schranz

And who says that it is true? As far as I have been taught a person is innocent until found guilty. And secondly the Court are investigating the murder of a person and not any affiliations of the accused with mafia!

So yes, the description of the Bis-Serjeta was just satire.

Austen Lennon
Austen Lennon
3 months ago

I must admit that I was very surprised at the number of lawsuits that politicians have made against their critics ever since I started visiting Malta some 21 years ago. It seems so unusual to hear that politicians are suing members of the public because they were offended or upset.

Sadly, this its not a new thing in Malta, but it is become quite normal round the world with tech giants shutting down freedom of expression across the globe.

I see no cure as it would take Maltese politicians and law makers to make the change and they will never do that… very sad. I actually, seriously, fear for the future of Malta. What Malta will be like in another 21 years is scary.

Kenneth Cassar
Kenneth Cassar
3 months ago
Reply to  Austen Lennon

Politicians and the Law Courts are a bunch of snowflakes.

John
John
3 months ago

We live in a country worse than North Korea. Grow two plants and get a 10 year jail term (Daniel Holmes), but greviously injure a policeman while driving a car underage, unlicensed and uninsured and you get released on bail shortly afterwards (Liam Debono). Now they’re cracking down on satire because it displeases the emperor. One wonders what is really going on behind the scenes.

Jools Seizure
Jools Seizure
3 months ago
Reply to  John

Malta has long since been a failed state masquerading as a mature democracy. Its true colours are coming out in the open now. We should have postponed our independence until such time when we can deal with it. No politician will admit to this because they want their podium and the sense of power that it gives them. They speak with one voice against colonialism trying to shake up some feeling of patriotism among the great unwashed. The truth is, for all its faults (and there are many), colonialism is better than this. Comoros voted for independence from France with just one island in the archipelago, Mayotte, opting to remain aligned to France. Fast forward 40 years and Comoros has gone to the dogs and Mayotte has successfully ridden on France’s back. Wait a few years and for “Comoros” read “Malta”.

Kenneth Cassar
Kenneth Cassar
3 months ago
Reply to  Jools Seizure

My thoughts, exactly. Independence was our tragedy.

KD Far
KD Far
3 months ago
Reply to  John

I do not agree in comparing Malta to North Korea. And most EU countries are corrupt as well…even the big powers!

Yet I fully agree that the Court uses a two ways two measures policy. The Court is strong with the weak and weak with the strong. Magistrates should have never been politically affiliated but selected from an autonomous court board with stringent requirements….any person that has shown interest in a political party should never be made a magistrate!

Martin Schranz
3 months ago

Instead of getting its house in order and at the very least, sorting out the ten year backlog of parents asking for access to their abused children, our court is now engaging in futile gagging orders. This is one fucked up country.

Last edited 3 months ago by Martin Schranz
carlo
carlo
3 months ago

It would be more interesting to read about the hundred and one scandals including assassinations, but NO – these can wait. Corrupt rock in the middle of the Mediterranean flooded with crooks without any exception. VERU TISTHI TGHID L-INT MALTI – shame on ALL those who have brought us to this miserable state, be they magistrates, lawyers, members of parliament, corrupt police and those who support an amoral government.

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