The freedom of the press and the law of defamation have, over the years, been the subject of various debates in Malta. This discussion is raging again mainly due tothe arraignment of justice shadow minister Jason Azzopardi who is accused of defamation.

EPP chairman Manfred Webber has been as saying, among other things, that as an EU member State, there are limits as to how far the Maltese Labour government can go “in its insatiably quest for power with complete disregard to human rights”.

Without in any way going into the merits of the case, which might very well lead to Azzopardi’s acquittal, I must state that, from a legal perspective, the criticism levelled against the government is frivolous, unjust and has no legal basis.

Following is a brief history on the subject matter.

By the late 19th century, even though with certain restrictions, freedom of the press was practically guaranteed. The colonial authorities issued the first ordinance on freedom of the press in 1836. This automatically led the way for the publication of the first Maltese political papers.

The first Maltese journal with a political tinge was Il Portofolio, first issued in 1838 and remained in print till 1902. This was followed by at least 20 others. It was felt that a balance had to be struck between the fundamental principles of having a free and independent press and the rights of individuals to be protected from slander and libel.

Defamation and libel cases in Malta are most prevalent though not limited to people involved in politics and, particularly, when the an election is approaching.

The issue of freedom of expression has been a hot potato in Malta ever since British rule. The law of defamation and libel is an area heavily influenced by English law.

It is time to seriously consider the repealing of the criminal aspect of libel and defamation

There is no hard and fast rule as to what constitutes defamation but, as commented by Gatley on libel and slander: “The question is not what the defendant intended but what reasonable men, knowing the circumstances in which the words were published, would understand to be the meaning. Liability for libel does not depend on the intention of the defamer but on the fact of the defamation... The question is not what the writer of an alleged libel means but what is the meaning of the words he has used.”

It is not the defendant’s intention, or the meaning in his own mind, that makes the sense of the libel but “what was the meaning and inference that would naturally be drawn by reasonable and intelligent persons reading it”.

Defamation as a crime is dealt with both in article 252 of the Criminal Code and in articles 3 and 11 of the Press Act.

Prosecution for defamation can legally only be initiated at the behest of the offended party. However, there need not necessarily be a traditional kwerela drafted by a legal counsel for it is enough for the injured party to make a report at a police station.

The complaint can be both verbal and written. The accused person has the right to be given a copy of the complaint/report if made in writing at the onset of the court proceedings. If it is made verbally then the injured party has to confirm his complaint in court viva voce in the first appointed sitting.

It is wrong to assume that the police can act ex officio without a complaint from the injured party. Once a report is lodged, it is the duty of the police to file charges. Should they fail to do so then the Police Commissioner can face ‘challenge’ proceedings in court.

In order for the crime of defamation to subsist , the words have to be communicated to third parties directly or indirectly because this is the only way the intention of the wrongdoer to destroy or damage the reputation of any person can be proved.

The injured party must be identified. The prosecution would have to prove that the wrongdoer had the specific intent of destroying the reputation and integrity of another person. It is accepted practice that when the words used are in themselves damaging to the reputation of another, the specific intention required for the existence of this offence is presumed and, thus, the wrongdoer would have to, at least on a balance of probabilities, prove otherwise in his defence. In other words, he would have to prove he had no specific intent to bad mouth or harm another and that another reason accepted by the law existed to neutralise the animus injuriandi.

However, when defamation is committed by means of the media action is then subject to the terms of the Press Act. This law controls defamatory comments made on printed newspapers, books and publications as well as comments broadcast on television and radio. ‘Printed matter’ in the Press Act is a very wide definition embracing “any record, tape film or other means whereby words or visual images may be heard, perceived or reproduced”.

Additionally, the term ‘publisher’ includes both publishers in the traditional sense as well as “…any person who owns facilities for the production or reproduction of any printed matter”.

Thus, due to the wide definition given to ‘printed matter’, the law regulating defamatory libel is not restricted to traditional newspapers and broadcasting media but extends its regulatory rule to internet libel, a growing reality around the world, with Malta being no exception. The internet is a very complex medium, often having the complex plea of jurisdiction at its base.

The criticism being made, unjustifiably inferring that the government had some say in Azzopardi’s prosecution, is malicious. It would perhaps be politically correct to condemn the fact that Malta still embodies defamation as a criminal offence in the Criminal Code in this day and age. However the criticism should rest there.

The debate on the subject continues and, maybe, yes, we have reached a point where there is a strong feeling that the last vestiges of criminal libel and defamation should be repealed. In this regard, however, we should act prudently.

No one is denying the inalienable rights pertaining to the free press and freedom of speech because these could be regarded as the corner stone of democracy.

A balance should therefore be struck in line with the stand taken in other European and democratic countries.

It is my earnest opinion that while, yes, it is time that Malta considers seriously the repealing of the criminal aspect of libel and defamation, likewise it should address the disproportionate quantum of damages the civil courts are allowed to award. This is needed to affirm the principle that the liberty of conscious does not always and under all circumstance signify the right to say anything, even if this is unjustly detrimental to third parties.

Josè Herrera is Parliamentary Secretary for Competitiveness and Economic Growth.