Yet another magistrate has called for the repeal of the law which makes defamation a crime, rather than just something for which you can sue in the civil courts for damages. Last time it was Magistrate Francesco Depasquale. Yesterday, it was Magistrate Joe Mifsud. Ruling in a case where a married councillor filed a police complaint against his married lover’s husband, who in anger had written about the affair on Facebook (and there you have multi-faceted signs of the times), Magistrate Mifsud said that the criminal defamation law exerts a “chilling effect” on the exercise of freedom of expression. Those exact words are quoted directly from a landmark judgement of the European Court of Human Rights, which had ruled very clearly on the matter that criminal defamation has a “chilling effect” on the exercise of freedom of expression.
The point many people don’t seem to understand is that anybody can file a police complaint against anybody else if they feel they have been insulted or offended, and not only if they have been lied about or feel they have been defamed. If the offending words have been published, even if only as a comment by a private person on the internet, then the police will prosecute on the basis of the complaint, and without even bothering to examine whether there is a case or not. Where journalists are concerned, the situation is even more worrying because writing and publishing their views is their daily bread and butter, and even their duty. Some journalists do not fulfil this duty properly because they are terrified of having a police complaint filed against them by somebody they write about, including politicians. Whether they are then found guilty or not is only part of the picture. I think lots of people fail to understand that the prosecution process itself is a huge deterrent on the proper exercise of freedom of expression. The police will drag a journalist to court and prosecute him or her simply on the basis of a complaint from a person who may be maliciously motivated. Even if the journalist knows that he or she will not be found guilty, the ordeal of being prosecuted (being sued in the civil courts is bad enough), receiving repeated police summons, having to take whole mornings off work to appear in court, and having to stand in the dock while being tried, is enough to put most journalists off doing their job as it is done in more democratic parts of Europe. That is why so many journalists in Malta are content to simply beat about the bush and avoid difficult subjects or difficult people: they think it is simply not worth their while.
But here’s the thing: two magistrates so far have called for criminal defamation laws to be dumped. One of them is the very magistrate who deals with a great slew of these cases. But magistrates do not make or repeal laws: they are there to apply them. Laws are repealed only by a majority vote in parliament, which means that somebody has to take action there, and then the majority has to vote in favour. But there is no sign of that happening any time soon, or at all. Meanwhile, politicians themselves – including cabinet ministers like Konrad Mizzi – are using the police to prosecute journalists for criminal defamation, which tells us exactly what their views are about that law, and how willing they are to vote to repeal it. They don’t want to repeal it, because they find it comfortable to pursue journalists using the police. It suits their purposes.
In the last general election campaign, there was a notorious incident in which Manuel Mallia, who didn’t yet have a seat in parliament, filed a complaint with the police and sought the prosecution of the then Nationalist Party secretary-general, Paul Borg Olivier, for criminal defamation. “Are you willing to see Borg Olivier jailed?” a journalist asked him during a press conference. Mallia replied that he had no problem with that. The implications were shocking, but in that “everybody loves Labour and hates the Nationalists” euphoria, nobody even cared, still less was shocked. Some of them might even have relished the idea of the PN secretary-general going to jail for “offending” Manuel Mallia. It’s that kind of island, where we are quite new to democracy and basic human rights. So is Manuel Mallia likely to use his seat in parliament to repeal the criminal defamation law? Most certainly not – he’s made it clear already that he loves it.
It’s all terribly ironic. Joseph Muscat’s liberal and progressive government picks and chooses as to which rights and civil liberties it prefers. Clearly, the right of two men or two women to marry each other trumps everybody’s right to freedom of expression and the need to have journalists do their job safe and secure in the knowledge that we will not be chased by the police, prosecuted or face a jail term as our professional colleagues in Turkey, Azerbaijan, China, Egypt and Algeria are.
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