Malta Today journalist Raphael Vassallo has lost a libel suit against blogger and civil society activist Manuel Delia over a blog post that appeared to suggest that Vassallo had a hand in the “mafia conspiracy that killed Daphne Caruana Galizia”.

The right to express one’s view on matters of public interest, like the Daphne Caruana Galizia assassination, is of vital importance for the rule of law and is one of the fundamental principles for free expression, observed Magistrate Rachel Montebello when delivering judgment. 

Delia’s comments were made following the publication of an article by Vassallo on February 7, 2019 titled, “Freedom of expression also means the freedom to talk out of your ass”.

In a subsequent post, Delia wrote that Vassallo, “… unwittingly or perhaps because he is a part of the mafia conspiracy that killed Daphne Caruana Galizia, … unwittingly perpetrates the myth that arresting and punishing the triggermen resolves the crime. That is how he (and others) cover up for the mafia, thereby being part of it.”

Vassallo claimed that such writing presented a very serious allegation that he was an accomplice in the murder or belonged to the mafia or criminal organisation that killed the journalist.

However, the court did not agree with the applicant’s claim.

Through his blog post, Delia was not attributing “a specific conduct” but reacting to the position adopted by Vassallo in his article, namely that Caruana Galizia was murdered by three hitmen who were now facing criminal proceedings.

Delia had argued that Vassallo’s article served to perpetuate the “lie” that no one else, apart from the three alleged hitmen and “their foreign contacts”, was involved in the assassination.

Taken objectively and as a whole, Delia’s writing could “in no way” be understood as insinuating that Vassallo materially belonged to the mafia or some criminal organisation responsible for the murder.

The court said that an article must be read in its entirety when assessing whether it is defamatory, rather than just the title or particular passages in the text.

The circumstances and whole context of the publication were also to be considered, said the court.

Moreover, the defamatory element had to be weighed according to the average reader's criterion, not that of a journalist, reader with a particular agenda or reader belonging to a particular social sector. 

In this case, the ordinary reader would have quickly realised that that the reference to Vassallo was nothing but a “metaphorical likening”, the court said. 

Delia’s writing amounted to a value judgment, albeit “a rather extreme one”, said the court, especially since the blogger had placed all those who did not share the view that the murder was committed by a criminal conspiracy on the same footing as the perpetrators or masterminds.

In many cases, even the harshest criticism may be deemed acceptable within the parameters of fair comment. And value judgments, even if somewhat exaggerated, are permissible if supported by facts. 

In this case, the court deemed the respondent’s article to have a strong factual basis, containing reference to his “intensive study” on the legal background to the introduction of article 416 bis of the Italian Penal Code and the notion of “omertà” as a form of complicity.

Delia had explained how that notion could also apply to anyone who misled the public into thinking that the mafia did not exist. 

The existence of such an organisation had also been acknowledged by the board in its final report a few months ago, on its conclusions in the public inquiry into the assassination, remarked magistrate Montebello.

Just as the applicant had a right to express his views on the murder, the respondent also had a right to voice criticism on that position and to express the belief that Caruana Galizia was killed by a criminal organisation operating in the shadows, implicitly helped by anyone who - like Vassallo - argued that the journalist was killed simply by the three men who planted the bomb in her car. 

Citing foreign jurisprudence, the court concluded that, “a critic need not be mealy-mouthed in denouncing what he disagrees with… (but rather is) entitled to dip his pen in gall for the purposes of legitimate criticism”.