Two news articles which were judged to be “not at all defamatory” just last week have been deemed libelous and of “malicious intent” by a separate appeals court.

The judgment ruled that editors of The Malta Independent must pay €5,000 in damages, plus legal costs, for two articles published in May 2016 concerning OPM chief of staff Keith Schembri and his business partner Malcolm Scerri.  

It said that the articles had purposely left out a detail that would have made the articles less sensational and that they had re-stated claims first made by Daphne Caruana Galizia “as though confirmed facts”. 

The ruling comes just one week after an appeals court in a separate libel case concerning the articles reached an entirely different conclusion. That court had deemed the articles “not at all defamatory” and limited damages to €500, for two comments posted by readers online. 

What were the articles about? 

Those articles, which appeared both in print and online, reported allegations that Mr Schembri had used fraudulent documents to open companies in tax havens.

They were based on claims published by Ms Caruana Galizia on her online blog two days prior. She had raised questions about the authenticity of HSBC documents presented by Mr Schembri and his business partner Malcolm Scerri. The documents featured the address of the bank’s Attard branch but were dated months after that branch had shut down. 

It later transpired that the documents had been incorrectly dated as a result of an administrative error.

Why were there different appeals cases?

Following publication, the articles had sparked two different libel suits: one filed by Nexia BT directors Brian Tonna and Karl Cini, and another, separate libel case filed by their clients Mr Schembri and Mr Scerri. 

In both cases, a magistrate’s court had found that the articles were libelous and ordered damages of €3,000 and €5,000 respectively. The Malta Independent had filed appeals against both those rulings.  

Last week’s appeals court was hearing an appeal related to the case filed by Mr Tonna.

That court, presided by Mr Justice Anthony Ellul, overturned the initial court’s finding and said the articles were “not at all defamatory”. Two comments posted beneath the articles online, however, were libelous, the court ruled. 

This Friday’s ruling by Madam Justice Joanne Vella Cuschieri concerned the second libel suit, filed by Mr Schembri and Mr Scerri.  

What did this appeals court find?

On Friday, Madam Justice Vella Cuschieri confirmed the reasoning of the first court, pointing out that the articles had been deemed libelous not merely when taken alone, but when read within the context of comments posted by readers on the online portal.

Moreover, the articles had “conveniently” failed to state that the paper had already been informed by HSBC that the ‘doubtful’ documents were the result of an administrative error.

This omission suggested “malicious intent”, the court said. The appellants had purposely left out that detail, as otherwise the story would have lost much of its effect and would not have made such sensational news, the court said.

Readers had “conveniently” been made to believe that the matter went far beyond an erroneous address, the court went on.

The appellants were to blame for “making as their own Daphne Caruana Galizia’s article but stating allegations as though confirmed facts without revealing all facts known to them, particularly information that it had probably all stemmed from an administrative error”.

One comment by the appellants specifically targeted by the court, that “HSBC employees were allegedly uncomfortable to testify against Keith Schembri”, was declared as “totally frivolous and vexatious intended solely to cast a shadow upon bank employees” and lacking any basis of proof.

As for defamatory comments posted by the readers, the court held that the appellants had not taken sufficient measures to remove those comments without delay.

The court also threw out the ground that the damages awarded by the first court, namely €5,000, were disproportionate, observing that the “clear intention” of the appellants to “leave out certain information” as well as their “clearly malicious manner of permitting defamatory comments” by readers without “any control or censorship” was intended to tarnish the reputation of Mr Schembri and Mr Scerri. 

In the light of such considerations the court rejected the newspaper’s appeal, confirming the award of €5,000 payable in damages, together with costs.

The attitude of many who act on the lines of first tarnishing and then ‘we’ll see’ is a deplorable attitude not sanctioned by law,” was the court’s final remark. 

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