Updated 7pm

The Constitutional Court has confirmed a decision slamming PBS  and the Broadcasting Authority for partiality in broadcasting. Damages have been raised from €1,500 to €5,000 each.

The original court sentence was delivered in July last year in a the cases instituted by the Nationalist Party. 

The court had decided that both the BA and PBS failed to ensure impartiality and protection against discrimination.

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 the authority's directive. 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 also upheld by the court. 

The court said that there was no need for any stretch of the imagination to conclude that the way the spots were sandwiched between government spots went against the spirit of the order issued by the Broadcasting Authority. 

That order was intended to create a balance between the two political parties on state television. 

But the PN's message was "minimised" said the Constitutional Court, presided by Chief Justice Mark Chetcuti with judges Giannino Caruana Demajo and Anthony Ellul.

Therefore PBS was manifestly and flagrantly in breach of its obligations because it did not faithfully abide by the Broadcasting Authority's order.

'BA washed its hands of the issue'

The court noted that the Broadcasting Authority had “washed its hands of the issue” by arguing that the PN had failed to abide by procedural formalities when it did not address its complaint about the budget adverts to PBS. 

The authority is the “guardian” of media impartiality, having the power and duty to act on its own steam to ensure that the Constitution is safeguarded and respected. Since the authority had failed to carry out its work in monitoring the fulfilment of its orders by PBS, it was thus the Court’s duty to give effect to the Constitution, it said.

Not only did the authority have the power to do away with procedural requisites, but it had the duty to act as a watchdog, ensuring that its orders are put into effect and that impartiality in broadcasting is maintained, it added.

In this case, the Authority dragged its feet to such an extent that the PN’s complaint was not investigated and the possible prejudice suffered by the party was never addressed. 

The court also held that the non-pecuniary damages awarded by the first court were too low. 

A €4,660 fine imposed upon PBS had been suspended. 

Moreover, mere months after being censored over the flyover interview, PBS again committed the same shortcoming in relation to the budget adverts. 

Such behaviour amounted to a “manifest lack of respect towards democracy and the rule of law". The authority had also shown an unreasonable and unwavering attitude in fulfilling its constitutional obligations, thereby denying the PN an effective remedy for its complaints, the court said.

However, the court turned down the PN’s request to reverse the decision that the minister was non-suited. The PN had absolutely not based its claim on any failure by the relative minister to take steps against PBS for any breach of contractual obligations, it said.

The minister responsible for broadcasting was also non-suited in terms of the laws of procedure. 

Paul Borg Olivier and Francis Zammit Dimech assisted the PN.

Edward Gatt and Mark Vassallo assisted PBS.

Ian Refalo and Mark Refalo assisted the BA.

Chris Cilia assisted the minister. 

PN leader welcomes court's decision

Opposition leader Bernard Grech welcomed the court decision. He observed in a Facebook post and later at a press conference that the BA and PBS had been convicted of breaching the fundamental rights of the PN when they censored its message.

"This is confirmation that PBS has become Robert Abela's propaganda machine," he said. Partiality in the way the news was reported had become consistent and manipulation from Castille was evident, he said. 

The decision by the constitutional court was therefore a victory for Malta, for the people and the PN, he said.

It was vital for the national broadcaster to be truly impartial as required by the constitution, rather than serving the interests of the Labour Party.