Blogger and civil society activist Manuel Delia is claiming that an appeal decision over a post he had written about Malta Today journalist Raphael Vassallo breached his right to freedom of expression and triggered a “chilling effect” on those writing about matters of public interest.

Delia filed constitutional proceedings on Tuesday following the judgment delivered in June, overturning the decision by the Magistrates’ Court whereby Vassallo had lost his libel suit against the blogger. 

Vassallo had sued the blogger over a post titled “Long Read:416 bis” published on Truth Be Told in October 2019, some eight months after an article by the Malta Today journalist titled, “Freedom of expression also means the freedom to talk out of your ass”.

Writing in the wake of the murder of Daphne Caruana Galizia, Delia’s comments appeared to suggest that Vassallo had a hand in the “mafia conspiracy” that killed the journalist. 

The first court had turned down Vassallo’s claims, stating that the right to express an opinion on matters of public interest, such as the Caruana Galizia assassination, was of vital importance to the rule of law.

Just as Vassallo had a right to express his views on the murder, so also Delia had a right to voice criticism and express his belief that the journalist was killed by a criminal organisation operating in the shadows, implicitly aided by anyone who- like Vassallo- argued that she was simply killed by the hitmen who planted the car bomb.

However, that decision was overturned on appeal.

The stature of the blogger in the eyes of his readers as well as the strength of his writings, meant that his comments carried weight.

And given the atmosphere at the time, Delia’s blog post may have led Vassallo to fear some revenge in his regard, the judge had declared, awarding Vassallo €1,000 in moral damages.

Decision challenged

That decision was now being challenged on the grounds that it not only breached Delia’s right to freedom of expression but it also failed to abide by the principle of proportionality.

While making it clear from the start that this action was by no means a form of appeal against that appeal judgment, Delia’s lawyers argued that the ruling amounted to an “unjustified” interference in the right to free expression.

Such interference was unnecessary and unreasonable in a democratic society and did not safeguard any “pressing social need”.

Both Delia and Vassallo were journalists who regularly contributed to public debates on various matters of public interest and current affairs, thus playing the role of “public watchdogs”.

The European Court itself holds that debates about particularly serious topics concerning the functioning of democracy and organised crime, should not be hindered since such debate is essential to the democratic process. 

Moreover, those who contribute to such public debate must be open to a higher degree of criticism and should not have the same “legitimate expectation” to protection as those who do not venture onto the public scene. 

Nor was it for the courts to determine the content or style of writing, the applicant’s lawyers argued.

No 'bad faith' behind comments

The judgment handed down by the court of appeal did not respect the balance between the right to freedom of expression and Vassallo’s reputation.

That court concluded that Delia had expressed an opinion but nonetheless concluded that he had made an “insinuation of fact” and condemned him for it.

There was clearly no “bad faith” behind Delia’s comments, his lawyers argued.

That final judgment brought about a “chilling effect” by labelling as defamatory an opinion on a matter of public interest.

It also signified a “financial burden” upon the blogger and served as a deterrent not only against Delia but all other journalists by instilling fear that their writings might bring about the same consequences and could damage their reputation.

The economic effects of such a court decision could also impinge upon their careers as journalists and opinion writers.

The applicant requested the First Hall, Civil Court in its constitutional jurisdiction to declare that his right was breached, annul the appeal judgment, provide adequate measures and award damages accordingly.

Lawyers Therese Comodini Cachia, Andrew Borg Cardona, Eve Borg Costanzi and Matthew Cutajar signed the application.