The court slammed the State broadcaster for its defiance and the Broadcasting Authority for dragging its feet in a damning indictment following a right of reply granted to the Nationalist Party.

Both entities failed to ensure impartiality and protection against discrimination, the court declared in a strongly-worded judgment, which spoke of an unwritten norm in Maltese politics whereby “the winner takes all”.

The winner uses his power of incumbency to the full, even through the media, while the loser cried foul and protested.

This was the main outcome of a judgment delivered on Thursday by the First Hall, Civil Court, in its constitutional jurisdiction, in a case which was filed by the PN claiming its rights were breached by the public broadcaster’s political bias and propaganda.

The case was filed over two separate incidents.

The first issue concerned the fact that it had taken PBS three months to publish a right of reply which the PN won, after twice filing a complaint before the Broadcasting Authority. 

That right of reply was granted after an interview aired on TVAM about the newly inaugurated Marsa flyover project was deemed “rather extensive and could have given rise to propaganda”.

PBS ignored authority's directive

PBS ignored the authority’s directive simply because it disagreed with the decision. The PN’s right of reply was published only after a second complaint triggered a €4,660 penalty for PBS.

That penalty was subsequently suspended once the State broadcaster accepted to abide by the authority’s order.

The second issue concerned political advertising spots concerning the 2022 Budget. 

Fifteen minutes’ worth of PN adverts, each 30 seconds long, were practically “neutralised” when sandwiched between government ads.

This second grievance was not upheld by the court, which observed that the PN had failed to file a second formal protest before the BA and instead had only registered its complaint in an informal manner. 

However, in respect of the first issue, the court, presided over by Mr Justice Grazio Mercieca, observed that although the authority had acted to ensure impartiality, it had failed to do so “with speed and proactivity that was needed in broadcasting, especially at a time of persistent rumours and clear indications that a general election was imminent - as in fact it was.”

Reply aired when it was no longer a news item

It allowed the PN’s right of reply to be aired late in the day when it was no longer a news item, said the court.

As for PBS, it should have obeyed the authority’s order immediately, whether it agreed or not, possibly seeking judicial review of that decision at a later stage. 

“Such defiance by the PBS and the authority’s dragging of feet,” spelt three months of delay which resulted in a sort-of remedy that was “no remedy at all.”

Speed is essential in broadcasting when redressing such imbalance, went on the court. 

Both the authority and PBS had failed in their constitutional obligations.

“Pluralism is an important factor in the right to (freedom of) expression,” said Mr Justice Mercieca.

When the State itself set up its station where it was a dominant player, it was to ensure that it provided the general public with “impartial and precise information as well as an array of opinions and comments reflecting diverse political views in the country”.

The State television attracted the largest audience and this peaked during the news hour. 

In this case, the PN was not simply seeking to enforce its right to make itself heard like government, but it went a step further in seeking a right of reply. 

By way of an aside, the court called for the right to freedom of expression to “no longer be trampled upon,” adding that it was saying this even if its comment “remained a solitary voice in the wilderness”.

But when there was a change and the loser became the winner, he too would commit the same abuse, the court said. 

“And so history repeats itself. Such cat and mouse tactics must stop once and for all,” urged the court. 

Turning back to the case at hand, Mr Justice Mercieca observed that the court had done its utmost to hear the case with urgency but time was too short and a remedy could not be given before the general election.

The court concluded that both the authority and PBS had failed to ensure impartiality and discriminated against the PN on the flyover right of reply issue, thus ordering each to pay €1,500 by way of non-pecuniary damages.

It also ordered an adequate and faithful summary of the judgment be given prominence during TVM 8pm news bulletin once this decision became final. 

Former minister Carmelo Abela was declared nonsuited because his only involvement was issuing the licence to PBS

Lawyers Edward Gatt and Mark Vassallo assisted PBS. Prof. Ian Refalo and Mark Refalo assisted the BA.  Lawyer Chris Cilia assisted Carmelo Abela.

Lawyers Paul Borg Olivier and Francis Zammit Dimech assisted the applicant.

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