The liberty of the press is one of the birth-rights of citizens in every civilised country embracing the rule of law. In Malta, the independence of the press is embedded in article 41 of the Constitution as a fundamental right.
The appearance in court two weeks ago of the Prime Minister declaring he was willing to drop civil libel proceedings against the estate of the late Daphne Caruana Galizia provided that her heirs accepted the conclusions of the Egrant inquiry exposed another dramatic twist to the turbulent legacy left in the wake of her tragic death.
The court case raises three major issues: first, freedom of expression and the laws of libel; second, the position in law of the late journalist’s family and heirs who are being held liable for any damages awarded against them in civil defamation proceedings; and third, the heirs’ willingness to accept the principal conclusions of the comprehensive magisterial inquiry into Egrant that followed her allegations against the Prime Minister and his family in 2017.
Starting with the cornerstone of any case against the libel proceedings brought by the Prime Minister, article 10 of the European Convention on Human Rights provides that the right to freedom of expression may be enjoyed without interference, unless limitations are imposed for specific policy reasons.
Under article 10(1) of the convention we have freedom to say and write what we like and “this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”.
But article 10(2) contains a list of exceptions to this general rule. These include the protection of the reputation of the rights of others, preventing disclosure of information received in confidence and maintaining the authority and impartiality of the judiciary. Thus, for example, it is forbidden to make statements which are seditious, or incite the commission of crime, or disclose official secrets.
But, more pertinently - of particular interest to the Prime Minister’s court case - despite the right to free expression, it is forbidden to make statements that are libellous or slanderous or defamatory.
The tendency of decisions made by the European Court of Human Rights in Strasbourg has been to enlarge the meaning of freedom of expression, to afford the media the greatest liberty to investigate, report, inform and comment. But also, importantly, with a reasonable measure of protection being afforded to those who are in the public and political sphere.
The Caruana Galizia family should take up the Prime Minister’s offer to seek closure
Under Maltese law, libel is defamation by publication. A libel is committed when a false and malicious statement is published that damages a person’s good name, bringing discredit by misrepresentation and defaming a person’s character or reputation.
When the Egrant story was published by Caruana Galizia in her infamous blog-post in May 2017, the Prime Minister felt that his own good name, character and reputation, as well as those of his wife and family, had been defamed by “a massive lie”. In a rare move by this Prime Minister, he immediately instituted libel proceedings against Caruana Galizia.
Joseph Muscat also rightly considered that such was the damage being caused to the political stability and reputation of Malta (Simon Busuttil, then Opposition leader, talked of a national emergency and a constitutional crisis) that he had no alternative but to invite a magistrate to open an inquiry into the truth of the allegations made by her.
Magistrate Aaron Bugeja’s 15-month investigation concluded unequivocally that the accusation made by Caruana Galizia was unfounded. There was no evidence linking the Prime Minister, his wife or their family to Egrant. There were no grounds to substantiate the accusation. In the light of this, it is for the courts now to decide whether a libel on Muscat – whose good name and reputation are paramount as Prime Minister – was committed by her.
In recent statements, Caruana Galizia’s family and heirs have attempted to cast doubt on the validity of the magistrate’s principal conclusions – in effect challenging the very basis of the rule of law in Malta. In a magnanimous, not to say conciliatory, reaching out to her family, however, the Prime Minister is prepared not to pursue his libel case but has offered to withdraw the outstanding action, provided the heirs accept the conclusions of the Egrant magisterial inquiry.
The “conclusions” of any magisterial (or judge-led) inquiry constitute the findings, a judgment reached by reasoning formed after considering the relevant facts and evidence. They establish facts and determine accountability. The conclusions in the Egrant case are solidly based on evidence adduced from almost 500 witnesses, together with international forensic and digital experts and information acquired from several jurisdictions.
Daphne’s husband, Peter Caruana Galizia, finds himself in court bearing the heavy emotional burden of responding on behalf of his wife’s estate. I have only met him a few times. We are mere acquaintances. But I can vouch he is a true Caruana Galizia. He is an absolute gentleman.
When asked in court to declare his position on his wife’s alleged defamatory writings, he said, rightly that he had not written the articles but had stepped into the lawsuits in terms of the law. One can only feel deep sadness, empathy and understanding for the position in which he finds himself, torn between a loyalty to the memory of his late wife and his own knowledge of the law as a practising lawyer.
For understandable but misplaced reasons, he and the other heirs find themselves in a quandary.
The evidence adduced by the magistrate is overwhelming: inter alia exposing fraud, forgery, false evidence and outright lies. It is difficult to view an accusation against the Prime Minister’s wife of being the owner of a €1 million secret offshore account as other than one intended to deface and disfigure the reputation of her husband, the Prime Minister.
The magisterial inquiry into Egrant established beyond reasonable doubt that there was a conspiracy, by persons presently unknown, to pervert the course of justice. The Caruana Galizia family should take up the Prime Minister’s offer to seek closure on this particular episode in this whole sorry saga.
This is a Times of Malta print opinion piece