Updated May 8 with Ellul's reply
A series of tweets by Matthew Caruana Galizia calling for greater scrutiny of a local financial services company linked to tax evasion and fraud in Slovakia were not defamatory but an honest opinion based on “copious evidence,” a court of appeal declared.
“It stands to reason that the public depends on the media to get information and opinions based on information available to journalists,” observed the court when delivering judgment in three libel appeals filed by E&S Consultancy Limited and its directors, lawyer Christian Ellul and accountant Karl Schranz.
Their claims had been rejected by a Magistrates’ Court last year which had concluded that the tweets represented an honest opinion, backed by “concrete proof” and were a matter of public interest.
Caruana Galizia’s comments were published in the wake of the murder of Slovak investigative journalist Jan Kuciak and his girlfriend in February 2018, four months after the assassination of Caruana Galizia’s own mother.
The background to those tweets was a series of local and foreign press reports linking Kuciak and his girlfriend’s murder to prominent Slovak businessman Marian Kocner, who was later arrested and prosecuted as the mastermind.
At the time he was gunned down inside his home, Kuciak had been investigating a tax evasion scheme that was likely being operated from Malta to the detriment of the Slovak government and involving the consultancy firm and its officials.
The court observed that it was not Caruana Galizia but police investigations which had reached the conclusion that Kocner used the services of the Maltese firm between 2010 and 2017.
E&S’s office served as the registered address for Kocner’s companies and the firm also provided the services of a company secretary.
Ellul, who was previously married to Kocner’s daughter, also served as director in one of those companies.
That was the backdrop to the tweets whereby Caruana Galizia questioned whether it was time for Maltese authorities to exercise greater scrutiny and to carry out arrests in relation to the Slovak case.
Upon appeal, Ellul, Schranz and their firm argued that the first court had ignored the damage they had suffered as a result of Caruana Galizia’s comments.
But the court of appeal, presided over by Mr Justice Lawrence Mintoff, turned down that argument.
The tweets had followed months of police investigations and reports abroad, resulting in Kocner’s arrest and uncovering the fact that the services offered by the appellants were not in conformity with the very onerous obligations they were expected to shoulder.
The firm’s operations had facilitated tax evasion and fraud to the detriment of the Slovak government.
Yet the appellants had said nothing about the evidence to that effect which was produced before the first court.
Moreover, certain consequences upon the appellants had come about as a result of those independent investigations, irrespective of Caruana Galizia’s tweets.
The firm did not deserve the same protection as that afforded to “a private person” and a professional service provider could not hide behind that excuse.
The subject of those tweets was a matter of public interest, concerning the murder of the Slovak journalist which took place just weeks after the assassination of Caruana Galizia’s own mother.
Both murders made the headlines both locally and throughout Europe for months, indicative of the “strong public interest” not only in the murder itself but also into what led to the assassination of both journalists.
Citing the European Court of Human Rights in De Haes Gijsels vs Belgium, the court said that “It is incumbent on the press to impart information and ideas of public interest. Not only does the press have a task of imparting such information and ideas: the public also has a right to receive them.”
Not only were Caruana Galizia’s comments backed by “copious evidence” but the information was already in the public domain.
In fact, the first “red flags” surfaced in 2012, observed Mr Justice Mintoff.
The “urgent” nature of the revelations and the circumstances surrounding those media publications were also relevant, especially when considering the fact that Kuciak’s murder had led to the downfall of the Slovak government and triggered repercussions in the business sector.
The tweets did not impact the appellants’ right to private and family life.
Nowhere did he hint at some direct link between the appellants and Kuciak’s murder.
All he asked for was greater scrutiny by Maltese authorities of the firm’s professional operations and practices.
Moreover, freedom of expression was not to suffer at the cost of protecting a person’s reputation.
The first court was correct in finding that Caruana Galizia had expressed an honest opinion, supported by ample evidence, and thus deserving protection in terms of law, said the judge, throwing out the appeals.
Allegations against us were unfounded - Ellul
In a reaction to the judgment, Ellul said the libel suits were filed after numerous tweets by Caruana Galizia including posts labelling them a "mini Mossack Fonseca", which tweets are time-barred, and calling for their arrest.
"While the judgments deemed the content of such tweets to constitute a ‘fair opinion’ at the time, we would like to clarify that the ‘copious evidence’ referred to, was evidence linking us to Kocner and the said companies which was public information we never denied.
"The evidence did not indicate any wrongdoing or illegalities carried out by us. Most importantly, the allegations made against us in the tweets have ultimately been proven to be unfounded."