Updated 7.30pm, adds details from judgement
Yorgen Fenech has failed in his bid to win a right of reply over an article penned by blogger Manuel Delia linking him to a company which had supplied a fleet of electric buses.
Fenech, who stands charged with complicity in Daphne Caruana Galizia's murder, sued Delia for failing to publish the reply following a blog post titled ‘Nobody Move’ uploaded on October 25, last year.
That post made reference to a story published by Times of Malta about some €1.7 million spent by the government on a fleet of electric buses “delivered by a company owned by Yorgen Fenech and his family”.
That company was Commercial Vehicles Imports Limited.
The following day, Fenech’s lawyers emailed Delia, pointing out their client had nothing to do with the company and requesting a correction to the article.
An email exchange followed and ultimately the requested right of reply was not published because the second paragraph of the drafted reply was deemed by Delia to be in itself defamatory.
Therefore he was not bound to publish it, Delia’s lawyers argued.
Moreover, the request was unfounded because Delia had simply reproduced in a correct manner the story reported by Times of Malta, his lawyers said.
When making final submissions last month, Fenech’s lawyers argued that a right of reply served to correct any misrepresentation of facts and to set the record straight.
Not only was Fenech not involved in that bus company but he wanted to point out that Delia’s blog was another “in a series of articles” placing him in a bad light.
Delia had attributed corruption and maladministration to Fenech when he was not involved in the company referred to in the Times story, as confirmed by a representative of the Malta Business Registry who testified in the proceedings, they argued.
On Thursday morning, Magistrate Rachel Montebello delivered judgment, rejecting Fenech’s request.
The judgement said that although Delia may have reported a state of fact that was non-existent, there was nothing to show that he misrepresented some action or intention by Fenech.
Nor could the publication be deemed as interfering in Fenech’s private life and although containing information that was possibly erroneous, that did not necessarily make it defamatory in terms of the Media and Defamation Act.
“An untrue imputation is only actionable… if it is defamatory,” said the court, citing doctrine on the subject.
“And in this case, the applicant did not claim to be a victim of defamation on account of the statement at issue,” observed the court.
Moreover, part of the reply drafted by Fenech’s lawyers was manifestly an expression of opinion whereby Fenech claimed that Delia’s false statement was “another instalment of an unprecedented campaign of fake news” done intentionally to mislead readers, thus prejudicing the applicant’s position.
By no stretch of the imagination could this part of the email by Fenech’s lawyers fall within the legal requisites of a right of reply, but was clearly an expression of opinion.
In light of such considerations, Delia’s refusal to publish that reply was justified, concluded the court, rejecting Fenech’s claim.
Lawyers Andrew Borg Cardona, Matthew Cutajar and Eve Borg Costanzi assisted Delia.
Lawyers Gianluca Caruana Curran and Charles Mercieca assisted the applicant..