In November 2020, a court banned the media from publishing any information derived from Yorgen Fenech’s text messages. A year later, another court confirmed that gag order. 

Fenech stands accused of complicity in the murder of journalist Daphne Caruana Galizia, and there are good reasons for the court to not want any leaked messages to taint that case.

The problem is Fenech is no ordinary suspect. He had a direct line to the country’s most powerful people, and he appears to have made use of that privilege to benefit himself and those close to him.

Those conversations had nothing to do with the Caruana Galizia case. And yet they remain hidden, smothered by a court’s good intentions.

If we know a little of what Fenech  and those in public office spoke about, it is because of people who dared to make that information available.

Author Mark Camilleri has published transcripts of conversations between Fenech and Labour MP Rosianne Cutajar. He had done something similar with chats involving Fenech and Edward Zammit Lewis, another Labour MP, in 2021.

Fenech discussed many things with Cutajar and Zammit Lewis, but Caruana Galizia was not among them. Still, Camilleri is now being investigated by the police for having published those conversations as ordered by the court.   

Whatever else we know about Fenech’s connections to political power is thanks to the bravery of sources who contacted Times of Malta.

Their information helped expose Fenech’s ties to regulators, PA bosses, the taxman, ministers and even the prime minister himself. All are issues of significant public interest; none would have ever seen the light of day, had it been up to Malta’s courts (or the police).

The court-ordered ban must also be seen in context.

If the police had a track record of swiftly and successfully investigating politically linked crime, then the court could rely on them to bring perpetrators to justice. That is unfortunately not the case.

Time and time again, it has been the media, not the police, that exposed the country’s biggest scandals. In the few cases that the police have acted, it is only after months, sometimes years, of doing nothing.

By making it a crime to publish any information related to Fenech and his devices, the courts are effectively making it easier for suspected criminals and the public officers within his circle to never have to answer publicly for their actions.

Is Malta better or worse off for knowing that ministers and backbenchers bent over, sometimes to the point of humiliation, to be in Fenech’s good graces?

Has the rule of law been damaged by the knowledge that Fenech was given confidential government information, or that he got help from the gaming regulator to hide casino breaches from investigators?

Camilleri’s decision to publish transcripts in full also exposed another problem with the court-imposed ban.

While media organisations like Times of Malta sweated over what is truly in the public interest and only publish stories  following legal advice, it was open season on social media platforms.

It seemed everyone had something to say about the leaked chats. Most of that conversation focused on the tittilating details. Some was thinly veneered misogyny.

The contrast between the flood of information on people’s personal feeds versus the trickle on traditional media just served to highlight how information bans are far less effective today than they were in the pre-internet age, when gagging mass media was an effective way of shutting down conversation.

Court gag orders exist for a reason, but our law courts need to find ways of updating their methods – and decrees – to match the society they operate in.

That could mean being more measured in deciding what to ban from publication, and why. Or perhaps courts could work more directly with editors to explain their decisions and their limits.

It is perplexing, for instance, that the media and judiciary have no way of communicating with each other to avoid grey areas or legal problems. Until change happens, the judiciary will continue to be a black box and media like Times of Malta will continue to be muzzled when reporting on certain issues of public interest.

That may be the law, but is it justice?