The European Court of Human Rights ruled unanimously last week that Article 10 (freedom of expression) of the European Convention on Human Rights had been violated in a libel case judgement given by the Maltese courts regarding a conflict within the Fgura local council

The Strasbourg Court awarded the applicants E1,460, in respect of pecuniary damage, and E6,000 for costs and expenses. No claim was made for non-pecuniary damage.

The applicants, Mark Lombardo, Charles Bonello and Alfred Debono, are Nationalist Party councillors elected to the Fgura local council. John Zammit was editor of the local newspaper In-Nazzjon Taghna at the time.

In 2001, a dispute arose between the central government and the Fgura local council about the Hompesch Road Project in Fgura. The matter was brought before the domestic courts and gave rise to discussion in the local council and the local press.

On 24 May 2001, during a local council meeting, the applicants tabled a motion calling for a public meeting to be held about the project. The motion was rejected.

On 7 August 2001, the first three applicants published an article in the In-Nazzjon Taghna that referred to the disagreement about the project stating that the local council “did not consult the public and is ignoring public opinion on the matter”.

As a result, the local council sued the applicants in their capacity as authors and editor of the article for libel and defamation.

On 12 November 2002, the Magistrates Court found the article libellous and defamatory on the grounds that the allegations of fact by the first three applicants had not been proved. On the contrary, public consultation had taken place from the outset: three public meetings had been held between 1995 and 2001; an urban planner’s report was made public; a questionnaire had been distributed to local residents and the minister responsible for roads and the Director of the Department of Roads had spoken in public about their discussions with the local council.

The court further noted that Mr Zammit was aware of the controversy, had believed the comments to be justified and had given the council the opportunity to reply. The applicants were ordered to pay, in total, Lm2,000 damages.

That judgment was subsequently upheld on appeal. It was decided, however, to reduce the damages to Lm600.

In October 2004, the Civil Court rejected the applicants’ constitutional complaint, referring, in particular, to the balance between the right to freedom of expression and the right to reputation, the fact that the interference had a legal basis at law and that it was proportionate and necessary in a democratic society.

That court also took particular account of the fact that the amount of damages had been reduced and had been ordered as a result of civil rather than criminal proceedings.

Ultimately, in October 2005, the Constitutional Court upheld the Civil Court’s judgment, finding that the previous courts had applied the law effectively and correctly, even though the limits of acceptable criticism were wider with respect to governments, which did not justify the use of false information.

In their application to the European Court, relying on Article 10, the applicants complained that their right to freedom of expression had been breached.

The court said that while freedom of expression was important for everyone, it was especially so for elected representatives who drew attention to the electorate’s preoccupations and defended public interests. Accordingly, interference with the first three applicants’ freedom of expression needed to be examined with great care by the court.

The court said the limits of permissible criticism were wider for politicians than for a private citizen and were wider still with regard to a government. It followed that an elected political body such as a local council should also be expected to display a higher degree of tolerance to criticism.

Moreover, the court found that political debate did not require unanimous agreement as to the interpretation of particular words. The court considered that the rejection of the applicants’ motion provided a sufficient factual basis for the allegation that the local council had not consulted the public so as to allow that allegation to be construed as a value judgment.

Even assuming it had not been a value judgement, the interpretation given by the applicants was not manifestly unreasonable. The allegation concerning public opinion having been ignored was clearly a value judgment.

The court recalled that the truth of value judgments was not susceptible of proof.

It followed that the Maltese courts had overstepped the narrow margin of appreciation afforded to them to restrict discussion on matters of public interest.

The European Court concluded that the interference had been disproportionate to the aim pursued and had not been “necessary in a democratic society”. There had, therefore, been a violation of Article 10.