It takes courage for a member of the judiciary, in particular a magistrate, to call for a change in the law when their primary function in court is to uphold the legislation that exists.
But that is precisely what Magistrate Francesco Depasquale did a few days ago, when he remarked on the “ambivalent situation” created by criminal libel in Malta.
Going a step further, the magistrate quoted a resolution by the Council of Europe’s parliamentary assembly which urged member states to “abolish prison sentences for defamation without delay”, and stated that countries where such provisions still existed provoked “a corrosion of fundamental freedoms”.
Along with Italy, Malta is one of the very few countries in the European Union that subjects journalists to blanket criminal libel. Not only that, but it allows both criminal and civil proceedings to be launched against a journalist at the same time – an issue which also prompted Magistrate Depasquale to ask questions.
First things first: robust libel laws are vital in society because they are the only protection available to citizens against defamation, which can be extremely harmful especially when it is driven by improper motives.
In the internet-driven world we live in today, this protection is more necessary than ever before because everybody is now a publisher, whether they produce a national newspaper or post on social media sites like Facebook.
However, criminal libel runs contrary to the spirit of a democracy. For starters, it inhibits freedom of expression. There are not many people who enjoy having a criminal record or face the prospect of being sent to jail, and that includes anyone considering a career as a journalist.
Secondly, because as we have seen all too often in Malta, the provision is wantonly abused. All someone has to do if they want to see a journalist face criminal proceedings is file a report at a police station.
No questions are asked, there is no investigation, and the first the journalist gets to hear about it is when he or she is served with a summons to stand in the dock – which should be a place solely reserved for those accused of committing real crimes.
The situation in Malta is so bad that criminal sanction does not just apply to libel, but also to the so-called ‘right of reply’ provision in the Press Act.
No self-respecting newspaper should refuse to publish, or corrupt beyond recognition, a response to an article. And while Malta is one of the very few European countries to legislate on the issue, there would not be too much objection if that legislation was fair. But as things stand it certainly is not, and it is also widely abused mostly by politicians.
This government had made a commitment to abolish criminal sanction in the context of journalism, and it has taken steps in that direction by setting in motion a process to change the law.
However, it is now more than halfway into its term and still nothing has happened. Journalists continue to run the gauntlet every day, risking criminal conviction for merely trying to do their job and fulfilling the important role they should have in society.
Proper libellous statements should be punished through the imposition of adequate financial penalties, but criminal sanction against what in many cases can be a genuine mistake, must be abolished without further delay.