Police often “err on the side of caution” and issue court charges whenever someone reports being insulted, as they rely on the decision of the magistrate rather than weed out unfounded complaints, according to several lawyers.

The lawyers agreed that police were handling the claims of River of Love pastor Gordon John Manché in the same way they handled other such cases: only that this case hit the headlines.

The problem was that, in all such cases, they failed to investigate allegations further before taking the cases to court – throwing the responsibility on the magistrate.

Over the past months, police pressed charges or questioned three people after Manché filed formal complaints claiming he was insulted by their comments.

Gordon Manché complained to police after a comedian referred to him as 'Malta's biggest asshole'. File photo: Jonathan Borg

Back in January, Matthew Bonanno, owner of the satirical news site Bis-Serjetà was charged with making online threats after he implied that the evangelical group River of Love should be carpet bombed. 

Earlier this month, comedian Daniel Xuereb was served with court summons for insulting Manché and misusing electronic equipment to share threats in relation to a video of his comedy sketch he posted on social media in March. In the sketch, Xuereb referred to a comment by Manché that “anal sex is an abomination” and added “as Malta’s biggest asshole, I think he knows what he is talking about”.

On Thursday, Teatru Malta’s artistic director Sean Buhagiar was questioned after he called Manché an "asshole" on social media and repeating Bonanno’s carpet-bombing comment.

Police should be ‘bolder’

Lawyer Joseph Giglio explained that, according to the Criminal Code, insulting a person is listed as a “contravention against the person”. The law goes on to add that “no proceedings shall be instituted except on the complaint of the injured party”.

Giglio explained that, once a formal complaint is filed, police are obliged to look into it. Since prosecution is on the complaint of the injured party, if police do not prosecute, the person filing the complaint can challenge that decision.

Giglio, a Nationalist Party MP and Home Affairs shadow minister, explained that in so far as misuse of electronic equipment is concerned, while the police can exercise their discretion in terms of whether or not to prosecute, in such cases they usually err on the side of caution and leave it up to the magistrate to decide.

The Manché case exposes a worrying trend

Lawyer Stephen Tonna Lowell said police were handling the Manché case as they handle all other similar cases.

Through his experience in court, when a person files a criminal complaint claiming to have been insulted, police call in the person concerned for questioning but do not investigate beyond that. Summons are issued and the case is heard during a district court sitting.

“Police tend to adopt the let-the-court-decide mentality. They do not look into whether or not a claim actually constitutes an offence before they take it to court – something which, in my view, they should do. Police should be more bold when it comes to taking these decisions,” he said.

Change of law

Constitutional lawyer Therese Comodini Cachia said she believed the main problem was the law.

“Retaining the offence of insult and applying it to words which are of common use, is foolish,” she said.

“It is too restrictive of freedom of expression and especially of the style of expression. Though the police are expected to enforce the law, and it is up to parliament to amend the law, one does expect the police to deal with cases which are serious such as incitement to hatred rather than the use of the word ‘asshole’.

“The Manché case exposes a worrying trend, and the legislator must step in to secure a more effective freedom of expression by amending all legislation which unnecessarily restricts freedom of expression. It is also very worrying that persons are charged with misuse of electronic equipment simply for expressing themselves without threatening or inciting hatred.” 

Home Affairs Minister Byron Camilleri and Culture Minister Owen Bonnici have both said they intend to make changes to the law so that it cannot be used to stem freedom of expression.

Giglio agreed that the way police were charging people with the misuse of telecommunication equipment − following a claim of insult − is worrying.

Often people charged with insulting someone were also charged under Section C of Article 49 of the Electronic Communications Act that states that any person who “by means of an electronic communications network or apparatus… makes any… improper use thereof…. Shall be liable to a fine not exceeding €25,000”.

Questions have been sent to the police.