The freedom of the press has been the subject of various debates in Malta over the years. By the late 19th century however, albeit with certain restrictions, this right was practically guaranteed. In fact, as a point of interest the colonial authorities issued the first ordinance ever promulgated regarding the freedom of the press in 1836. This automatically led the way for the development of the first Maltese political newspapers. In fact the first Maltese journal with a political tinge was Il-Portofolio, which was first issued in 1838 and remained in print till 1902. This gazette was followed by at least 20 others, which included Malta Times (1840–1904), the Daily Malta Chronicle and Garrison Gazette, first issued on 14 November 1884 till June 1940, and finally the Mument, which was first issued in 1972. From early on however, it was felt that a balance had to be struck between the fundamental principle of having a free and independent press and the rights of individuals to be protected against slander and libel. In this regard it is worth referring to the magna opus of one of Malta’s most eminent judges, Paolo Debono’s Storia della Legislazione. Here Debono states that the liberty of conscience does not mean insulting anybody who does not agree with you. He even reminds us of the saying of a great Frenchman; Le droit de tout dire n’existe pas plus que clui de tout faire, which means that you can no more say whatever you like than do whatever you like. He concludes by stating that any honest journalist should welcome certain limited restrictions on the licence of the press.

In the White Paper regarding various proposed reforms to our juridical system, the government is proposing to abrogate certain offences mentioned in Part II of the Press Act, that is, Chapter 248 of the Laws of Malta. The said law contains the offence of defamatory libel. The offence is considered from Article 11 to Article 22. The punishments contemplated in our law are the following:

“If the libel contains specific imputations against such person tending to injure his character and reputation, or to expose to public ridicule or contempt, to imprisonment for a term not exceeding three months or to a fine or to both such imprisonment and fine.

“In any other case, to imprisonment for a term not exceeding a month or a fine.”

In truth however, when analysing jurisprudence we will find that rare and remote were the instances when our courts imposed prison terms on such occasions. During the last 35 years there has not been one single instance.

This notwithstanding however, times change and we have to change with them. The political realities and exigencies existing during the times of Judge Paolo Debono, that is, the early 20th century, have obviously changed completely and perhaps today, guaranteeing the absolute freedom of the press has become more sacrosanct and hence the underlying reason for the government’s proposal. On the other hand, however, it is not the first time that I have gone on record affirming my belief that even in this regard we have to act prudently and with great caution, for which I have occasionally been severely criticised. No one is here denying the inalienable rights pertaining to free journalism, since this could be regarded as the cornerstone of democracy. On the other hand however, in our rush to portray ourselves as liberal and democratic we must not completely sideline the inherent rights of individuals from being unduly harassed and maliciously libelled. Elsewhere in the world, even in the most free and democratic countries, libel is considered a very serious matter indeed, giving rise to both civil and criminal actions; damages in such suits can even run into millions of liri.

In Malta, rightly or not, similar cases are no longer treated as serious issues, in the sense that the maximum amount of damages to be awarded can never exceed Lm5,000 and are therefore summarily treated before our Magistrates’ Courts. When the law increasing the competence of our Inferior Courts to Lm5,000 was being piloted in Parliament, I had taken the liberty of making certain recommendations. I had stated that to my mind a libel suit should be regarded as a serious matter and should therefore be tried before the Superior Courts. In this respect I had therefore recommended a symbolic increase of one pound to the maximum amount of damages, thereby keeping such cases within the exclusive jurisdiction of the Superior Courts, which has been the case since time immemorial.

Going back to what the government is proposing I would not resist the government’s temptation in abrogating the possibility of a prison term in libel cases, since in practice our courts, as said earlier, have not been applying the law in extremis; thus the said provision could be regarded as almost a dead letter. On the other hand, however, I would not go so far as to agree that libel and slander should no longer be regarded as criminal, since intrinsically they remain so. As a point of interest for example, in article 339(1)(e) of the Criminal Code even the mere uttering of insults is considered a criminal offence, albeit a contravention. Therefore it makes no sense to consider slander, which is far more heinous, a lesser act. Thus what could be done is to have article 11 of the Press Act amended, thereby revoking the possibility of imprisonment but increasing somewhat the co respective fine to be imposed.

Strengthening the freedom of the Press is a laudable aspiration; however, what I have been trying to state is that the title to this article should always be regarded as a misnomer.