The Media and Defamation Bill (MADA) proposed by the government and intended to replace the Press Act contains an obligation for the registration of websites with a Media Registrar. Websites are defined in the proposed MADA as "any web-based news service or other web-based service relating to news or current affairs that operates from Malta or in respect of which editorial decisions are taken in Malta".

Dr Ghio is categorically against such website registration obligations.

Following widespread criticism during the past days on the website registration obligation, the government's position has primarily focused on the fact that registration obligations on editors of traditional newspapers already exist under our current laws and that MADA was merely extending this obligation to the editors of news portals.

So what is so intrinsically wrong with the website registration obligation?

It is not just the proposed definition which is totally wrong but the whole principle of website registration with the State. This goes against all accepted notions of the applicability of the right to freedom of expression online and will have a chilling effect on free speech, especially through the notice of complaints procedure which is being proposed.

One question I would like to ask the Minister [Owen Bonnici] is where, in the democratic world, could a similar website registration obligation be found? Nowhere. Well, apart from Russia, Bangladesh and China.

Apart from running against international conventions on human rights and numerable jurisprudence, these website registration proposals go against the EU Human Rights Guidelines on Freedom of Expression Online and Offline adopted by the Council of Ministers of the EU, including Malta, in May 2014.

Internet and digital technologies have expanded the possibilities of individuals and media to exercise the right to freedom of expression and freely access online information. The right to freedom of expression thus includes freedom to seek and receive information. It is a key component of democratic governance as the promotion of participatory decision-making processes is unattainable without adequate access to information. The proposed Bill limits this access and hinders such participation.

What the government is proposing is just plain crazy and is diametrically opposed to what it agreed to protect in 2014 through the EU Council of Ministers, especially when it comes to 'citizen journalists'.

Archaic media registration law

The Press Act requirement is archaic and out-dated in the first place. It was introduced in 1974 and reflects an 1881 UK law. You cannot apply 19^th century laws to 21^st century technological realities. In fact, such registration obligation in the UK was removed pursuant to the Deregulation Act of 2015. Furthermore, under UK law there is no website registration obligation.

 

But what is wrong with extending a newspaper editor registration obligation that already exists under our current Press Act to the editors of news portals?

If all Europe, even the country on which the MADA text is mostly based, has deregulated registration obligations, why are we going in the opposite direction by inserting this obligation to register websites? It makes absolutely no sense."

I have served as MCA Chairman and EU Digital Champion for Malta, and under Article 19(2)(a)(ii) of MADA, it is not only the editor of the website that has to register but the website itself since the domain name has to be provided as part of the declaration submitted to the Media Registrar.

Minister Bonnici said the web registration clause is an extension of a 2012 PN Policy. It transpired he was referring to a DOI press card online application page that also provides for the ability of employees of news portals to obtain a Press Card. What is the difference?

There is no comparison. The DOI Press Card application has nothing to do with the registration of websites. Proper identification in official government activities is important and the DOI has an administrative mechanism to identify journalists and allow them access."

It transpired this week that blogger and journalist Daphne Caruana Galizia had previously attempted to register as the editor of her website, and the Press Registrar did not allow this as no such system or policy was in place.

If I have a website carrying news and I do not give a hoot about government events and don't intend to send my journalists to government press conferences, then my employees would not even need a DOI Press Card. Under the proposed MADA, I would still be forced to register my website, irrespective of whether I want to attend official government events or not and risk being fined up to €1,000 if I don't. It is entirely nonsensical: DOI recognition and website registration are entirely unrelated."

 

Justice Minister Bonnici, in a previous telephone interview with this newsroom, said that the government's legislative proposals also tried to address situations when a person does not know whom to sue for defamation in the case of anonymous authors. How do you react?

When you see the plethora of international recommendations, guidelines and studies recognising the importance of the right to online anonymity, they go completely opposite to this MADA Bill." Article 19 Foundation and the UN Special Rapporteur for Freedom of Expression relates to the right to online anonymity but also to encryption.

"The fact that you can freely express your views online, even through anonymous means, is recognised as being part and parcel of Article 19 of the Universal Declaration on Human Rights. This should not be tampered with by our government."

What about the argument made by Minister Bonnici, where he spoke of difficulty in instituting defamation proceedings against anonymous online users?

Through the courts, anyone can request Internet Service Providers to reveal the identity of users through identification of the IP Address. The DOI Press Card application has nothing to do with the registration of websites. There are also take-down provisions. This has to be done by the judiciary through legitimate means and for legitimate grounds and not through the State or any entity controlled by it. MADA doesn't solve anything.

Through the use of proxies, Virtual Private Networks and applications like TOR, it has become really simple to hide your identity online and laws can never catch up or restrain such technological developments. That is why inserting any requirements regarding websites in the MADA is not recommended. Defamation laws should be technology neutral.

We already have local case law confirming the applicability of our current Press Act to Facebook posts or blogs and questions therefore why should we start adding technology flavours to our defamation laws.

Anyone's right to remain anonymous online and to freely express oneself without the risk of retribution, or without the State being aware, should be recognised. Trying to prevent or unnecessarily limit this right is totalitarian."

Wasn't the fact that MADA is based on the latest defamation laws in the UK a good thing?

Not necessarily. Apart from the fact that UK law contains no website registration obligation, certain provisions contained under UK law have been seriously 'tweaked' for MADA. Most notably is the distinction that exists under UK law and the proposed MADA in relation to the procedures and parameters regarding notice of complaints. Under the UK system, such procedures (including revealing the identity of online users) have to be approved by both Houses of Parliament while in Malta these would fall purely under the prerogative of the Minister.

I was surprised to see this. Principally, what is being proposed is that the Minister can unilaterally decide to introduce procedures which could say, for example, that if any ex-member of Parliament feels aggrieved by some online comment, then the website operator would need to take them down within two hours or else become responsible. This is the chilling effect that such laws introduce, curtailing online freedom of speech".

 

Are the current proposals under MADA introducing grey areas with respect to technology issues?

The very inclusion of a definition of "website" and the registration obligation are the root problems and I was shocked to hear that in situations of grey areas regarding whether registration will be required or not, this matter would be decided by the Media Registrar.

If anything, it should not be the State that decides but an independent body in accordance with transparent principles and not based on the discretionary element of some government official.

The same problems apply to the territoriality restrictions of the proposed bill.

How are you going to prove in court that editorial decisions are being taken from Malta? How are you going to ensure that users are not using proxies or TOR to circumvent such rules? What about cloud services? What about registration obligations in cases of wikis where the editorial function is shared or distributed between multiple users? Will all users need to register? Technology is always five steps ahead of the law and MADA is at least 50 steps behind common recognised standards of a well-functioning democratic society.

If Minister Bonnici was my student I would give him a flat F without hesitation. These online principles are so basic that I cannot understand how they got the text of MADA so wrong in this regard. The government has absolutely no clue."

What do the 2012 Digital Rights White Paper and the 2014 PN Bill propose?

In a nutshell, the Digital Rights White Paper is saying that the internet should be recognised as an important tool for the enjoyment of our traditional human rights online. The internet cannot be a fundamental human right in itself, but there should be recognition that this tool is so important that it should be protected, even at constitutional level.

In 2014, a private members' bill was presented by the Nationalist Opposition so that the digital rights of internet access, informational access, informational freedom and informational self-determination are introduced in our Constitution as enforceable rights.

The underlying principle here is that any restriction to information flows should be made by laws which are predictable and transparent, legitimate, proportional and necessary in a democratic society.

These digital rights should serve as a litmus test against which any law, which directly or indirectly impinges or curtails our free participation in a digital society and enjoyment of fundamental human rights, would be measured. MADA should have been measured against such rights but unfortunately our Parliament has yet to find time to debate them".

 

You have discussed many shortcomings you see in this Bill, but is there nothing you welcome?

I welcome among others the removal of criminal libel and precautionary garnishee orders on journalists. But as far as website registrations and any reduction in online anonymity, MADA is a mess. You do not issue a bill as a knee-jerk reaction to the private members' bill presented by the Opposition the previous day, with this mumbo jumbo of dangerous things with no comparison in the modern world.

What about the increase in fines for libel damages [from €11,700 to €20,000]? They are the lowest in Europe as is.

I do not have a position on this.

Did the government or the Minister ever ask you for advice or invited you to share your views with him?

No. It seems that consultation is not high on this government's list of priorities.

 

Web-registration clause in the proposed Media and Defamation Bill requires any news or current affairs web-based service to register with the Government through a Media Registrar

Justice Minister Owen Bonnici	ICT and Media Law Lecturer Antonio Ghio
“What concerns me is anybody who writes and hides their name. I think it is fair to say that anybody has the right to protect their reputation.”	“The fact that you can freely express your views online, even through anonymous means, is recognised as being part and parcel to Article 19 of the Universal Declaration on Human Rights. This should not be tampered with by our Government.”
“So if I set up an anonymous website, I write that you spent five years in jail [which is untrue], you have the right to refute this claim,” by being aware of who is making the claims and therefore taking legal steps to remedy	“Through the courts, anyone can request Internet Service Providers to reveal the identity of users through identification of the IP Address.”
“Today the media registry incorporates the names of radio, broadcasters and newspapers... So now we have extended this to web portals and online news portals”.	“Through the use of proxies, Virtual Private Networks and applications like TOR, it has become really simple to hide your identity online and laws can never catch up or restrain such technological developments. That is why inserting any requirements regarding websites in the MADA is not recommended.”
“In 2012 a policy was passed under the previous Nationalist Party government, which allows for portals and online news to be registered.”  [referring to Department of Information registration to be issued a press card, giving press access to government events]	“If I have a website carrying news and I do not give a hoot about government events and don’t intend to send my journalists to government press conferences, then my employees would not even need a DOI Press Card. Under the proposed MADA, I would still be forced to register my website.”