Victor Paul Borg analyses the case of a woman and two men prosecuted over their Facebook comments directed against the police in the wake of the incident involving a traffic policeman. What implications does it have for others who post reckless messages?

The three young people who appeared in court last Tuesday had tears in their eyes and appeared dazed.

Kylie Cutajar, 21, Ritmark Borg, 28, and Josef D’Amato, 24, had been picked up by the police after making comments that displayed mockery and even a hint of celebratory glee in the aftermath of the incident in which traffic policeman Simon Schembri was mown down in the course of his duties.

The police arrested the trio, confiscated their phones and laptops, and arraigned them in court under arrest on May 18 in front of duty magistrate Joe Mifsud, who remanded them in custody. They were eventually released on bail after 12 days in prison by Magistrate Claire Stafrace Zammit.

Sympathy for the trio in society is hard to come by, and the heavy-handedness with which they were treated took place in a social context of widespread revulsion towards their comments.

But the initial denial of bail by Magistrate Mifsud – on the rationale of giving notice to society (or passing a message to society, in Maltese, “tgħaddi sinjal ċar lis-soċjetà”) – could be seen as a form of summary justice or punishment that may have breached their human rights.

“At that stage [of initial arraignment] they are still innocent of any criminal taint,” Giovanni Bonello, who served as a judge on the European Court of Human Rights in Strasbourg, told The Sunday Times of Malta.

“The court has to deal with them as innocent persons whom the prosecution claims it suspects of having committed a criminal offence. No one can make an example of innocent persons by denying them bail, simply because the crime they are accused of outrages public sentiment. Bail is granted or denied on specific, well-defined criteria, not to appease popular resentment.”

As such this case raises vexing questions and may have implications for the scores of people who often post inane and reckless, yet criminally liable, messages on Facebook without much thought.

Bail is granted or denied on specific, well-defined criteria, not to appease popular resentment.- Giovanni Bonello

What comments on social media are illegal, and which laws apply?

Comments or posts on social media can fall foul of a raft of laws. At the lower end of the scale in terms of punishment are laws on insults and invective hurled towards a person, as well as harassment by electronic means. Repeated, unsolicited and unwanted messages sent to someone – even repetitive, unwanted tagging of someone if given notice to desist – can be a form of harassment.

Higher up the scale, any published statement that slanders a person, even reveals unsavoury personal intrigue about a person, can give rise to a libel in which the aggrieved person seeks damages in the civil court. The defendant would then have to prove the veracity of his statement in his defence (the plea of truth or accuracy might fail in revelations of personal affairs, especially if it’s for the sake of gossip or malice).

Damages for libel can amount to €11,000, and damages can be awarded even in the case of statements exchanged or made on Messenger: last January Magistrate Francesco Depasquale awarded a woman €3,000 in damages for defamatory statements that her ex-partner made in Facebook Messenger messages to her friends and her new partner.

No one can make an example of innocent persons by denying them bail, simply because the crime they are accused of outrages public sentiment

The law on hate speech, on the other hand, is intended primarily to protect minorities. It is defined as any comment whose “intent is to stir up violence or racial or religious hatred against another person or group on the grounds of gender, gender identity, sexual orientation, race, colour, language, ethnic origin, religion or belief or political or other opinion or whereby such violence or racial or religious hatred is likely…” Hate speech is punishable by a prison sentence of six to 18 months.

In the most famous recent case on the matter, Brandon Bartolo made a comment related to Sara Ezabe, a headscarf-wearing Maltese national born to a Maltese mother and Libyan father. The comment hurled invective and asserted that in Malta we “only have one religion… guests have to observe our laws.” He added: “They don’t like it? F*** off back to your country.”

Mr Bartolo was prosecuted at the behest of a criminal complaint by Ms Ezabe. Magistrate Joe Mifsud, who heard the case, acquitted Mr Bartolo in a judgment that took into account the wider context in which the comment was made as well as the question of criminal intent. The ruling was denounced by a coalition of 15 NGOs as “irrelevant, populist and also factually incorrect”.

What are the charges against Cutajar, Borg and D’Amato?

The three young people were charged pursuant to articles 69 and 70 of the Criminal Code on the basis of three comments made on Facebook posts. Article 69 makes it an offence to “publicly instigate any other person to commit a [criminal] offence”, something liable to a punishment that ranges from a fine to five years imprisonment, depending on the gravity of the offence instigated. And article 70 deals with “publicly inciting any other person to disobey the law”, punishable by a fine or imprisonment of up to three months.

It all started with Kylie Cutajar sharing an article that appeared in a newspaper about the hideous incident involving traffic policeman Simon Schembri, in which she quotes an excerpt from the article – “what happened was a reflection of society that lacked discipline and respect towards the authorities”. She then commented on that excerpt: “However, do the authorities treat citizens with same kind of respect they are expecting back [sic]?”

Reacting to that post, Ritmark Borg made an inane quip – he eventually told the police that his comments were intended to impress Ms Cutajar – and she responded: “Wahda reverse u ejja ha mmorru” (which translates, not literally, but in meaning, to something like: ‘Hit the reverse and carry on’. This comment fits with eyewitness descriptions of the incident as it unfolded). Borg then wrote: “Kif tkun hemm addi darbtejn ha tkun certa” (meaning: ‘While you are at it, go over twice to make sure’ – in the incident, the policeman was dragged underneath the car).  

Josef D’Amato’s comment, in a separate post, read: “Insomma sew amel jalla itajru wihed kuljum ha nehilsu minom… good day.” (Meaning: ‘Well, laudable actions, God willing they shall run over one every day so we can get rid of them [the police]’.) This comment was celebratory of the actions of Liam Debono, who was driving the car. (The descriptive prose being used here is as neutral as possible: this newspaper makes no suggestion that Mr Debono’s actions were murderous or even deliberate; he has been charged with attempted murder, guilt is a matter for the court to decide.)

The defence lawyers of the trio may argue that these comments, although abominable, are bereft of criminal intent: the comments do not directly ‘instigate’ anyone to commit a crime, neither ‘incite’ anyone to flout any laws.

Traffic policeman Simon Schembri was run over and grievously injured. There has been widespread revulsion over comments passed by three young people in the wake of the incident.Traffic policeman Simon Schembri was run over and grievously injured. There has been widespread revulsion over comments passed by three young people in the wake of the incident.

Was this investigation and prosecution selective and arbitrary?

Comments that can similarly be prosecutable pursuant to articles 69 and 70 of the Criminal Code are rife on Facebook, yet the police rarely, if ever, prosecute anyone unless someone makes a report (even though the police in cases such as this are empowered to prosecute without a specific report being made by an aggrieved party).

This point was debated in court last Tuesday for about 30 minutes, and the prosecuting inspector conceded that the investigation wasn’t spurred by any specific report or complaint. A suggestion was made by another media outlet that Police Union chief Sandro Camilleri had called on the police to investigate, but Inspector Camilleri would only say when contacted by The Sunday Times of Malta that he had merely posted screenshots of the offensive comments on his Facebook page.

“We [the police union] were inundated by complaints about those comments,” he said. “I posted the screenshots, which became viral, so the complaint in this case was made by many people.”

The prosecuting officer, Inspector Joseph Busuttil, when harried in court about this point by defence lawyer Franco Debono, said that several police officers had urged the Vice Squad to act. “As an officer,” he said, “I personally felt that I had to do something about this.”

Pressed on who was the aggrieved party, co-prosecutor Inspector John Spiteri said that “the injured party is the entire police corps”.

As to the question of why the police took the initiative to prosecute in these cases but not in other similar cases, the police said in court that they can only investigate cases they become aware of. The suggestion is that the police do not trawl social media for illegal content. This fits within the narrative of the defence that the three young people were targeted for prosecution due to the social frenzy in the aftermath of the incident, as well as the indignation that resonated among the police. This could be construed as selective or arbitrary justice and, as such, an abuse of power.

Inspector Camilleri of the Police Union told this newspaper that relevant police units should be expanded to enable proactive policing of online content. “Hateful and offensive comments on social media have become intolerable and all too common,” he said. “We have to do something about it.”

Was the initial denial of bail legally defensible?  

The defence lawyers may argue that the comments, although abominable, are bereft of criminal intent

The young people were denied bail on arraignment by duty magistrate Joe Mifsud. The law sets criteria for the denial of bail which mainly include the grievousness of the offence, the chances of re-offending, the chance of absconding from Malta, the likelihood of tampering with evidence or influencing witnesses or somehow obstructing the course of justice, and the chances that the accused would not observe the bail conditions and/or appear in court.

In this case bail was opposed by the prosecution on the basis that Facebook comments could be amended or deleted – the criteria of tampering with evidence. If the prosecution opposes bail, the defence has to bring up counter-arguments in favour of bail. The legal aid lawyer of Josef D’Amato did not request bail, while Mark Refalo, representing the other two, requested bail.

The decree denying bail invoked none of the criteria laid down in the law. Magistrate Mifsud’s decree instead lamented the baseness of online comments that the courts have been fretting about, including comments by people representing institutions and comments making a mockery of the courts.

The decree then enters into rhetoric about sometimes-baseless ‘attacks’ (criticisms) on ‘those who maintain order in the country’, before concluding that while the court believes in presumption of innocence until found guilty, in the circumstances it feels that it has to send a signal to society that the forces of law and order have to be protected, and no one has the right to mock them (“iżeblahom”) or foment (“ixewwex”) against them.

Asked about the legitimacy of this argument, retired Judge Bonello said that “punishment of delinquents by the courts may be fashioned not only to penalise the crime and reform the criminal, but also to pass a message to society – but that is only permissible after [his emphasis] the accused has been found guilty.”

In ‘setting an example’ by denying bail, he added, “the court had already made up its mind as to the guilt of the accused before a shred of evidence is brought before it.”

 “I personally would be in favour of example-setting punishment for persons who have been found guilty of rejoicing publicly that a policeman has been grievously injured,” Judge Bonello said. “But only after due process has established their guilt, and its degree of heinousness. That is the only proper moment the court has the right and the duty to ‘set an example’ to exercise its social and pedagogic function.”

The three accused were eventually released on bail on May 30 by Magistrate Claire Stafrace Zammit, who imposed tough conditions including signing the bail book thrice weekly, and a curfew between midnight at 7am.

Although these stringent conditions are based in legal parameters (bail conditions are commensurate with the punishment envisaged in law for the crime accused of – article 69 offences can elicit up to five years’ incarceration), they raise the question of whether the criminal court is the optimal venue to try these cases. 

Asked about this, Judge Bonello said: “I agree that the criminal courts may not be the ideal venue to police all abuse of social media, when done recklessly and not with precise criminal intent. The wisdom of proportionality between the harm caused and the remedy devised to re-establish the rule of lawfulness should be considered. I would see juvenile social media first offenders better served extra-judicially than by drowning them in the criminal justice stream.”

With additional court reporting by Edwina Brincat.

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