Government waters down board of inquiry’s protection for journalists

Even after the government-appointed committee of media experts submitted their comments and recommendations to the government, the proposed bills for the protection of journalism that tabled in parliament this week still fall short of the changes envisaged by the board of the Daphne Caruana Galizia public inquiry.

This is hardly surprising. After all, the entire process was devoid of any broad, public consultation and it was  shrouded in opacity and controversy since its inception.

Tell-tale signs

The signs were all there: During an extraordinary parliamentary sitting held in July last year to discuss the public inquiry’s conclusions, Prime Minister Robert Abela never committed to a plan or a timeline to implement the inquiry’s recommendations. Neither did he take up the offer for technical assistance offered to him by several press freedom organisations to help the government with the implementation process.

The government then shot down the Opposition’s legislative proposals in Parliament which were based on the public inquiry’s recommendations, and so as not to be outdone by the Opposition, Abela hastily set up a media experts committee.

The Caruana Galizia inquiry report recommended setting up a committee of media experts that were meant to examine the state of journalism (page 446) and the fundamental right of freedom of expression.  The committee was to produce specific recommendations that parliament would consider in a brief timeframe.

The public inquiry board specifically recommended that the whole process should fall under the auspices of the President of Malta to ensure good governance and the rule of law.

Instead, not only was the committee of media experts set up under the auspices of the prime minister, but the same committee was then simply handed a set of draft legislative proposals for press freedom prepared by the government and it was given three months to comment on them. The committee was never consulted during the drafting of the bills.

The limitations of the government’s legislative proposals had already been identified as far back as January of this year, when former opposition MP Therese Commodini Cachia published the documents after Robert Abela claimed during a parliamentary debate that the Opposition had indeed been consulted, saying he had given Comodini Cachia a copy of the proposals himself.

The media experts committee then submitted their recommendations and suggestions in June, but it was not until late September that Justice Minister Jonathan Attard made the government’s proposals public at a press conference.

What the public inquiry recommended vs what the government proposed

In August, The Shift carried out a detailed analysis of the status of the public inquiry’s 28 key recommendations, nine of which concern safeguarding the role of journalists. Here is how the board’s recommendations stack up against the government’s draft laws.

Board recommendation: The public inquiry board recommended that a free press should be recognised as one of the pillars of a democratic society in Malta’s Constitution and that the State must guarantee and protect it.

Government proposal: The government proposed an amendment to Malta’s Constitution, which includes the recognition of free media and the role of the media as a public watchdog that the State shall protect. This amendment will be introduced as a new article (20B) within the constitution’s declaration of principles.

Nevertheless, the values outlined in the declaration of principles are not legally enforceable. Article 21 of the constitution provides that the principles found in chapter 2 are not enforceable in a court of law but are meant to be considered by judicial authorities when interpreting and applying legally binding provisions.

Board recommendation: The public inquiry board also recommended a constitutional amendment to recognise an individual’s right to receive information from the state and public administration.

Government proposal: The government did not include this in its draft legislation and did not take up the media committee’s proposed amendment to add that “Public authorities will be obliged to provide access in reasonable time to information they hold and information about their activities.”

Board recommendation: The board further suggested that the Freedom of Information Act should be revised to limit instances where public administration may arbitrarily refuse to provide information in the public interest.

Government proposal: Not only has the government failed to propose any legislative amendments to that effect but it also rejected the Committee’s proposal to add a criterion for the conditions which are justifiable in a democratic society under which access to information is granted.

Board recommendation: The board also recommended that SLAPP libel suits should be addressed and libel suits after a journalist dies should be terminated.

Government proposal: One of the draft laws tabled by the government is an amendment to Article 3 of the Media and Defamation Act. The amendment defines how in the event of the death of an author or an editor while civil proceedings for defamation are underway or pending against them, then the court will not award damages against their heirs and may also, at the heirs’ request, summarily order that the case is discontinued.

Yet the plaintiff may request that if the alleged defamatory statement has a publisher other than the deceased author/editor, then the case may continue against the publisher instead of the heirs.

The government’s proposals against Strategic Lawsuits against Public Participation (SLAPP) include amendments to Article 10 of the Media and Defamation Act. These include empowering Malta’s courts to dismiss cases that are manifestly unfounded.

#Malta: as we approach 5th anniversary of #DaphneCaruanaGalizia’s assassination it’s so worrying to see @RobertAbela_MT @MaltaGov pushing through problematic media reforms without consultation.
Essential they open transparent process for input from journalists & civil society https://t.co/IZvuXKFbZ7

— Sarah Clarke (@Sarah_M_Clarke) October 4, 2022

Damages in SLAPP suits ordered by foreign courts may be capped at local equivalents by a Maltese judge or magistrate and local courts can disregard judgments by foreign courts in SLAPP suits.

At the same time, the legal provision still gives discretion to the court to proceed to limit the execution of the judgement “depending on the circumstances of the case” to the amount the Court considers would be due in damages had the case been instituted in Malta.

The tweaked anti-SLAPP law disregards the recommendations provided by the international organisations OSCE and Article 19 and rather than meeting international minimum standards for the protection against unfounded and abusive proceedings, journalists will still be open to threats from SLAPPs.

Board recommendation: Another recommendation was to establish a formal structure in the police force in the form of a trained, specialised unit that should be created to identify persons, exposed to serious attacks of all kinds that may escalate to physical violence. Within the unit, there should be an element focusing on journalists at risk.

Government proposal: The government proposed setting up the Committee for the Recommendation of Measures for the Protection of Journalists, Other Media Actors and Persons in Public Life. This new committee will be composed of the permanent secretary in the ministry for security (home affairs), the Commissioner of Police, the head of the Malta Security Service and the Armed Forces of Malta commander.

Other legislative amendments proposed by the public inquiry board that have been ignored by the government are the revision of the provision in the constitution that establishes the Broadcasting Authority (pg 441) and its responsibility toward impartiality and the setting up of an independent Office of the Ombudsman or a Commissioner for Journalistic Ethics, neither of which were implemented.

Reacting to the news that the government had tabled the bills in Parliament, Sarah Clarke of Article 19 expressed concern over the government’s insistence on pushing through problematic media reforms without consultation as the country approaches the fifth anniversary of Daphne Caruana Galizia’s assassination.

The draft bills, however, were tabled by the justice minister in Parliament on Tuesday where they had  their first reading, effectively ruling any sort of public consultation short of the forthcoming parliamentary debates.