A magistrates' court threw out four libel suits on Thursday as it declared that "the murder of a journalist, more so when that murder was possibly linked to his work, constituted a manifest attack on freedom of expression”.

That statement was made by Magistrate Rachel Montebello when delivering judgment in the separate, though parallel, defamation suits filed by E&S Consultancy Limited and its directors - lawyer Christian Ellul and accountant Karl Schranz - back in 2019, over a series of tweets by Matthew Caruana Galizia, with a link to a related article published by The Shift.

The tweets and the publications alleged that the Maltese consultancy firm was involved in tax fraud with Marian Kocner, the prime suspect behind the murder of Slovak investigative journalist Jan Kuciak, shot dead alongside his girlfriend in February 2018.

Following that double murder, just four months after the assassination of his own mother, Caruana Galizia tweeted that Kocner had allegedly used Malta for “money laundering and tax evasion”.

He alleged that the Slovak businessman, arrested as the prime suspect behind the murders, had used shell and holding companies set up and administered by the applicants “as a sort of mini Mossack Fonseca”.

Kocner’s daughter had previously been married to Ellul.

Kuciak had been investigating tax fraud 

Kuciak had been investigating the suspected tax fraud by Kocner and his Maltese advisors at the time of his murder. 

“Yet nothing was done… and guess who won the fight,” Caruana Galizia tweeted, his comments reflected in an article published by The Shift titled, “The man charged with Jan Kuciak’s murder, his links to Malta and what a safe can reveal.”

Those publications were deemed defamatory by the company and its two officials who claimed that the allegations had negatively impacted their reputation and spelt “serious financial losses” for the group. 

Those publications alleged that since E & S were assisting Kocner and were allegedly involved in the “Slovak-Malta tax fraud” which was deemed as a reasonable motive for Kuciak’s murder, then they too were to be arrested, the applicants argued.

But contrary to what they claimed, the court stated that those publications did not “expressly” imply that they were to face arrest over Kuciak’s murder.

“That was nowhere declared in the two tweets,” which focused only on the tax fraud, said Montebello. 

Moreover, there was a “significant leap” between a “reasonable suspicion” resulting in an arrest and a “declaration of guilt”.

As for the serious financial losses caused by such allegations, the applicants had testified about losing some clients and a prospective employee who changed his mind, as well as payments withheld for unfulfilled services.

Opinion based on substantive facts

The MFSA and MGA had no longer considered them as “fit and proper to retain the licence as company service provider”.

Such allegations had cast “a negative shadow” upon the integrity of the group and its officials, they argued. 

But the court concluded that that did not amount to proof of serious financial losses, although it acknowledged that loss of business could lead to such losses. 

Caruana Galizia had produced “concrete proof” that his comments were an expression of opinion based on substantive facts which existed at the time.

He also “abundantly proved” that his tweets were based on privileged publications, namely the article on The Shift as well as Kuciak’s own writings on Aktuality.sk.

Those writings were a matter of public interest, especially since Kocner’s arrest followed months after a similar arrest linked to the Caruana Galizia murder.

“The murder of a journalist, more so when that murder was possibly linked to his work, constituted a manifest attack on freedom of expression,” said the court.

“Reports on every subject related to attacks on this fundamental human right can be considered nothing less than a publication on a matter of public interest and one done in the public interest.”

The court examined all evidence, as well as the background, to the multiple controversial transactions involving millions of euros, wherein the applicants proved to be “an important link” playing “an essential role”.

Those were the transactions being investigated by Kuciak and what Slovak police viewed as a “realistic motive” for the journalist’s murder. 

Caruana Galizia’s comments were an honest opinion and “an honest person could easily, legitimately and honestly form the same opinions”, said the court. 

Nor was there any evidence that Caruana Galizia had acted “maliciously” with an intention to spark controversy or to damage the applicants, even by omitting certain facts. 

As for The Shift, while declaring the portal as non-suited, the court concluded that its editor, Caroline Muscat, had exercised her editorial judgment in a responsible manner, reporting in good faith the matter that was deemed to be of public interest and not defamatory. 

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