Alfred Attard vs John Vella

Judges

Chief Justice Vincent Degaetano

Joseph D. Camilleri

Joseph A. Filletti

Court of Appeal

17 January 2005

This Court of Appeal judgement dealt with the concept of defamatory libel (malafama) of an individual via the media, in this case a newspaper. The question that arose was whether the facts written were in fact true.

It is interesting to note that once a defamatory statement is transposed into writing, it is an issue which is covered by the Press Act. A number of pleas may be raised in order to justify one’s writings. These include the intention to joke, or to give a piece of advice or lack of identification of a particular individual, the plea of fair comment or that the writing was done as harmless abuse.

The most common defence is known as exceptio veritatis (plea of justification). There is a widespread, incorrect, belief that one can say anything to anybody, provided that the truth of what has been said can be proved. However, in reality, that defence is available only against a specific list of individuals and it has to be raised in a specific way according to law, taking into account other precautions.

Article 12 of the Press Act deals with this plea of justification and reveals that where an action for defamatory libel has been filed, the truth of the matters charged may be enquired into if the accused, in the preliminary stage of proceedings, assumes full responsibility for the alleged libel and declares in his defence that he wishes to prove the truth of the facts attributed by him to the aggrieved party.

The Facts

On 24 March 1999, a letter signed by the defendant (Vella) was published in a local newspaper and the plaintiff (Attard) claimed that it contained defamatory and false facts in relation to his person which in his opinion were written with the intention of exposing him to public ridicule.

First Hall, Civil Court

The plaintiff requested that:

• The Court should:

(i) rule that by virtue of the publication of the said letter, the defendant should be found guilty of defamatory libel due to his being exposed to public ridicule and consequently,

(ii) condemn defendant to pay to him a liquidated amount as compensation for the injuries suffered together with all judicial expenses.

The defendant

• The letter in question contained truthful facts which could be proved as genuine statements within the parameters established by Article 12 of the Press Act.

The first sitting was adjourned by the Court with specific instructions for both parties to bring forth and produce all evidence. On the day assigned for such hearings, the defendant did not turn up, although his lawyer did. Hence only the plaintiff was present and he indicated precisely which extracts of the article he felt injured and defamed by.

The Court

• The alleged defamatory writing concerned the time when plaintiff Attard was a councillor on the Cospicua local council.

• Once the defendant claimed that the letter was truthful there was an inversion of proof burdening himself with the need to provide evidence to back up the facts which he strongly alleged as being true, yet he never provided any evidence on this count.

• When the defendant put forward the exceptio veritatis claim, he assumed all responsibility for defamation. The defendant hence claimed that the plaintiff had repeatedly caused trouble, that he was dismissed from the council because he betrayed the council and the voters (when in actual fact he was dismissed due to non-attendance at council meetings), that he defamed other people and followed the example of other politicians like Hitler and Milosevic.

• These were precise assertions of fact and not observations or comments which the defendant failed to prove in order to attribute credibility to such allegedly truthful facts.

• These assertions intrinsically revealed that they were written with the intention to defame the plaintiff (Attard).

Consequently, the defendant was found guilty of defamation via printed material and was ordered to pay the plaintiff Lm400 compensation. The defendant appealed.

Court of Appeal

The defendant’s 1st Plea – The First Hall, Civil Court’s disregard of other means of providing proof of veracity of facts

• The Court of First Instance was incorrect in ignoring his declaration on oath which accompanied his statement of defence as well as the cross-examination of plaintiff Attard on the day when defendant Vella failed to appear in Court.

• There was no fixed rule as to the manner in which the evidence of the veracity of the facts should be manifested hence, even what the plaintiff stated could be utilised as proof of the defendant’s plea.

The Court of Appeal examined both the defendant’s declaration on oath accompanying the statement of defence as well as the Plaintiff’s evidence and statements through his cross-examination.

The Court of Appeal on defendant’s 1st Plea

• The defendant’s declaration on oath proved nothing, since it merely contained a very generic statement affirming under oath that:

(i) the contents of the letter in question included a clear and direct reference to the facts

(ii) he in no way attributed to the plaintiff any false facts

(iii) all facts referred to by him were public knowledge

• What the defendant had to but failed to prove was evidence that the specific facts were true in such a way that even certain comments with respect to the same facts could be regarded as fair comment.

• The same thing could not be said in relation to plaintiff’s cross-examination since some, although not all, specific facts emanating therefrom were acknowledged by the plaintiff himself.

• From the said cross-examination, it was proved:

(i) that Attard forfeited his position as a councillor after he failed to attend a substantial number of council meetings as required by law and was so informed by the minister responsible for the local council in question.

(ii) that the plaintiff did in fact say certain things that were reported in the defendant’s letter in the newspaper

• The plaintiff himself, when cross-examined, proved the veracity of certain facts that the defendant wrote in his article. Yet, this alone did not prove the truth of the statements in the newspaper claiming that

(i) plaintiff resigned twice due to his not becoming the mayor

(ii) plaintiff quarrelled with everyone

(iii) plaintiff invented facts about others and defamed them

(iv) plaintiff was dismissed because he had betrayed both the council and the voters – indeed, the word dismissal tended to imply in strong terms that the plaintiff did something wrong and not that he simply took a deliberate decision not to attend council meetings.

• The comment that plaintiff Attard followed the example of politicians like Hitler and Milosevic was accepted by the Court as a comment in retaliation to other facts which the plaintiff himself, in cross-examination, admitted to writing. This was accepted in the context of our local politics and could be tolerated as comments permissible in a democratic society.

• However, all other comments – that Attard tended to quarrel with everyone, was dismissed from the council because he betrayed the council and the voters (when in actual fact he was dismissed due to non-attendance of council meetings) and that he defamed other people, could be deemed to be defamatory for the simple reason that there was never any concrete proof thereof which was presented to the Court.

The defendant’s 2nd Plea – The First Hall Civil Court’s failure to consider the Plaintiff’s Right of Reply and that the letter had no harmful effects

• The First Hall did not take into consideration the facts that:

(i) four days after publication of the incriminating letter, Attard’s own letter in rebuttal was published (in the same newspaper and with the same prominence)

(ii) the incriminating letter subject to Court proceedings did not have any harmful impact whatsoever on the plaintiff’s public life.

The Court of Appeal on defendant’s 2nd Plea

• The fact that an individual uses his Right of Reply in no way hinders the right of such person to react through judicial means to defamation

• Defamation persists irrespective of whether or not there were harmful effects on an individual’s public affairs. Defamation is a crime simply because an individual is defamed.

The defendant’s 3rd Plea – Freedom of Expression

• In the light of Attard’s response to Vella’s letter, the incriminating letter should merely be seen as a simple comment and a clear manifestation of Vella’s freedom of expression.

The Court of Appeal on defendant’s 3rd Plea

Gatley on Libel and Slander (Sweet & Maxwell, 1981) - “[w]hether a statement is one of fact or is a comment is a matter of interpretation in the light of all the circumstances known to those to whom the words are published, in particular the context in which the words appear. If in the light of those circumstances a reasonable member of the public would understand the words as the expression of an opinion on facts, or as an inference drawn from facts, the words will be held to be comment.”

• Applying the above interpretation, it was impossible to regard as mere comments and an exercise of freedom of expression, the statements claiming that Attard was always quarrelling with everyone, that he was dismissed from the council and that he invented false facts and defamed other people.

• The comparison with unscrupulous foreign politicians was the only one deemed to be a comment of sorts, and this because it was proved that plaintiff himself said certain things that led to the defendant’s exercise of freedom of expression on the matter, albeit harsh, yet not enough to render it inadmissible in a democratic society.

Court of Appeal’s Judgement

• A revocation of the judgement of the First Hall, Civil Court was deemed unnecessary and a mere modification was sufficient.

• The First Court’s liquidation of damages and condemnation of defendant to pay plaintiff Lm400 in damages and all judicial expenses was modified and defendant was condemned to pay Lm270. With regard to judicial expenses, these were to be split as to the plaintiff (1/5) and the defendant (4/5).