Article 19, The Universal Declaration of Human Rights: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Mstislav Rostropovich died last week. The Russian cellist, composer and conductor was one of the greatest instrumentalists of all time, yet that is not the only reason why the obituaries filled the newspapers of the democratic world. The other reason – perhaps the main one – is that at the height of the Cold War he used his celebrated status to stand against Soviet repression of freedom of expression in his homeland.
When his friend Alexander Solzhenitsyn came increasingly under attack by the Soviet authorities in the late 1960s, Rostropovich and his wife, the soprano Galina Vishnevskaya, invited him to stay at their being dacha outside Moscow. He was their guest for four years. Rostropovich’s own troubles began in 1970 when, out of frustration with the suppression of writers, artists and musicians, he sent an open letter of protest to Pravda, which did not publish it, and to some of the most important newspapers in the free West, which did. “Every man must have the right fearlessly to think independently and to express his opinion about what he knows and what he has personally thought about and experienced,” he wrote, “and not merely to express with slightly different variations the opinion which has been inculcated in him.”
After that letter was published, Rostropovich and Vishnevskaya were punished by cancellation of their engagements, and refusals to allow them to travel abroad to perform. Four years later, they were given permission to travel to the United States for concerts. They never returned to Soviet Russia. Rostropovich gave interviews saying that he would not go back until artists were free to speak their minds. “I will not utter one single lie in order to return,” he said in 1977. “And once there, if I see new injustice, I will speak out four times more loudly than before.”
The Soviet government’s response was to strip him and Vishnevskaya of their citizenship. After that, they travelled on special Swiss documents, until their citizenship was restored after the fall of the Berlin Wall. As the wall was dismantled by the crowds, the world’s most famous cellist sat at Checkpoint Charlie and performed a Bach suite. The Associated Press photograph of him doing so was flashed around the globe, and became a powerful symbol of the end of repression in Europe. In 1991, when Communist hard-liners tried to topple the more open regime, Rostropovich went to Moscow to stand beside Boris Yeltsin. And two years later, during the siege of the Russian White House, he gave a free concert in Red Square. In an interview in the late 1990s, he said of that fateful letter he wrote in 1970: “I never did anything better in my life.”
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Rostropovich’s death passed unnoticed in Malta, but this is unsurprising. Music is not our strong suit. While we were tangling ourselves up in knots about the Eurovision Song Contest, Joseph Calleja was conquering audiences in the world’s most important opera houses, and we didn’t notice. Freedom of expression is not that important to us either, because we have long since learned to get by without it. We lived without freedom of expression right up until the end of the 20th century, and even now, it remains a strange animal that we are not quite sure how to handle. We think that we practise freedom of expression, but in truth we continue to cling to the mindset that views, and even the people who espouse them, can be banned, just because the majority, or even a vociferous minority, doesn’t like them.
I have the perfect illustration to hand. Rebecca Gomperts, a Dutch doctor and abortion campaigner, may sail to Malta. ‘May’ is the operative word because she doesn’t even have a ship yet. Even so, the letters from Disgusted of Sliema, Hamrun and Xewkija have begun to pour in, egged on by the Gift of Life Movement. “Ban her from Malta!” “Don’t allow her to enter harbour!” “The government should prevent her from setting foot on Maltese soil!”
I hold no brief for Dr Gomperts. I don’t even like what she does. But I like even less the thinking of those who want her banned. They are using precisely the same reasoning as that of the Labour government of the 1980s, which used the Foreign Interference Act to deport from or prevent the entry to Malta of people it did not agree with. Today’s government cannot do such a thing even if it wants to, and we have membership of the European Union to thank for that. Dr Gomperts is a Dutch citizen. Not only is she free to come to Malta as and when she pleases, but she is also free to live here for the rest of her life if she can stand the strain, and to work here. The only thing she can’t do is perform abortions, because that is against the law. By the same token, Paul Vincenti and Disgusted from Sliema, Hamrun and Xewkija are free to sail their own ships into Rotterdam, there to campaign against the evils of abortion and to perform pro-life counselling aboard.
Nobody will stop them, so they should take advantage of the free movement of persons within the EU to go and preach against abortion in a country where abortions actually take place, instead of in a country where there is no abortion already.
Dr Gomperts is not just free to come here. She is free to speak in favour of abortion. Despite the many efforts of those who wish to have us believe that there is a law against doing so in Malta, there isn’t. And thank heavens for that, because a country which allows the Fascists to march down Republic Street, but does not allow women to speak in favour of abortion would be a very odd fish indeed in contemporary Europe. The ones who don’t like it are at liberty to use their own freedom of expression to argue back. The one thing they are not allowed to do is to misuse or misinterpret the law to shut the others up.
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We live in a country where we have freedom of expression in theory but not in practice. People do not speak up or write about what they think, loudly and clearly and without hedging and qualifying their phrases and their views, because they are afraid of the consequences.
In the Malta in which I grew up, these consequences were very serious and immediate: your home was ransacked, you were visited by the police, you lost your job or your import licence, you were blacklisted, or, more prosaically, you never got that colour television or telephone connection. If you were a newspaper, you got burnt down, and if you were a reporter for the enemy press, you got hit and beaten.
After 1987, people remained afraid and continued to keep their heads well beneath the parapet. When I became the first proper columnist ever in the history of the Maltese press – one who wrote what she thought with no holds barred and with her name and photograph stuck on top – I was widely deemed to be insane. People would stop me in the street and ask me why I did it, what I hoped to get out of it, why I didn’t realise that it was better to keep my opinions to myself. They genuinely did not know that out there in the democratic world, opinion columns were a staple part of newspapers, along with the news. The real change came after 1991, with the explosion in the number of media organisations. With more newspapers, and the liberalisation of radio and television, the pages and the airwaves were crammed with views and opinions, many of them weak and ill-argued, but their very presence to be celebrated.
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And now there is fresh danger. As newspapers in Malta have begun rather cautiously to give space to the sort of comment that they would never have carried in the past, those who feel themselves offended are rushing to the law courts to sue for libel. There is nothing to discourage them from doing so: the fees are small, the feat not arduous. Filing a libel suit does not serve only as a catharsis for those who believe their honour to be impugned; it also serves the useful function of harassing the writer they believe to have impugned it. The writer will, over the next few years, be dragged up to court on a regular basis, forced to engage a lawyer in his or her defence, to pay fees, to spend valuable hours researching arguments, to stand in the box and to defend his or her views and the reasons for holding them and for making them public.
As a general rule, the less honour a person has, then the keener he or she is to defend it in court. I have been mocked, disparaged, ridiculed, insulted and even lied about in a thousand newspapers over the past 17 years, but I only sued once: when the now Labour MEP Joseph Muscat included me in a book about the P2 and the octopus of corruption in Malta, a lie so outrageous and shocking that I could not let it go by. I won the case outright. Yet the list of people who have sued me for libel on the slightest pretext reads like a gallery of rogues, pompous puffballs and charlatans – but if they were not so, then I wouldn’t have written about them in the first place.
I am not the only one to be harassed by dishonourable and disreputable people who imagine that a court ruling will convince the rest of us that they had some kind of honour to start with. My colleagues in other areas of the media are enduring worse persecutions, with longer lists of libel suits and demands that they pay up to Lm4000 in damages. But tell me, how does a court quantify Lm4000 worth of damage caused by a journalist to the reputation of Dom Mintoff, when he has done so much to damage his own reputation, beyond repair or rescue?
Over the past few years, there has been an escalation in the number of libel suits. Any fool and his dog is suing, claiming that he has been mocked, made fun of and exposed to ridicule. Yes, that’s it – exposed to ridicule. In Malta, a public figure can sue a writer for exposing him or her to ridicule. Imagine that. Nowadays, I spend at least four mornings a month in court because I have exposed one public figure or another to ridicule. I have to stand in the witness box and explain what my intentions were in exposing them to ridicule. Why, to expose them to ridicule, of course.
Three weeks ago, the court ordered me to pay Lm500 in damages because I had laughed at a notary and Labour candidate, Mark Anthony Sammut, who tried to board a plane with a gun is his handbag, even in the midst of all this anti-terrorist security. He had sued me for exposing him to public ridicule. I appealed, and if I lose that appeal, I am going straight to the Constitutional Court and, failing that, to the European Court of Human Rights. Those damages look paltry compared to what some of my colleagues are being obliged to pay - Lm4000, Lm3000, Lm1000 – but it’s not only about the money. There’s an important principle at stake.
All those who are reading this: wake up. You live in a country where writers and newspaper editors are being sued for their opinions and even being found guilty of libel for their opinions. You live in a country where self-censorship among writers and editors has become a fact of life: people are watching what they write and watching what they publish because nowadays, even opinions based on fact are being construed as libellous by the Magistrates’ Courts. Writers and newspapers are being weakened by the large sums of money they are being made to pay to the public figures they write about.
The strict definition of libel is attributing to somebody facts which are untrue and harmful: saying that a politician has creamed 20 per cent off a contract, for example, when he hasn’t (or more to the point, when you can’t prove that he has). Libel does not mean causing a politician or a public figure offence by criticising or mocking something that he has done or failed to do. Once the facts on which you have built your opinions are not in dispute, then your opinions cannot be construed as libel.
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Thank God for the European Court of Human Rights. It has just delivered a judgment against Malta in a landmark libel case. It was the 16th judgment by the European Court of Human Rights against Malta in a few short years, but the first that is about libel.
I am making a fuss about it because, with this judgment on record, the Magistrates’ Courts in Malta cannot continue in their attempts at making journalists and editors ‘prove’ their opinions when the facts on which those opinions are based are not in dispute, nor force them to pay damages to the public figures they have expressed an opinion about, however much upset that opinion has caused the public figure.
In its implications, this judgment by the European Court is a Magna Carta for press freedom in Malta. It emancipates us in a way that our own courts have failed to do. It allows us to raise two fingers at the many fools who are now dragging us through the courts because they did something, we criticised it or laughed at it, and they felt their honour was besmirched. Above all, the European Court’s judgment shows us that the Maltese courts have barely a clue as to what freedom of expression is all about. The four people who take their case to Europe had been found guilty of libel by the Magistrates’ Court because of an article in which they accused the Fgura Local Council of “not consulting the public and ignoring public opinion” on a certain matter. Oh hideous crime – how could the Magistrates’ Court possibly allow that to be said, even in a free country? It awarded the council Lm2000 in damages. The case was lost on appeal, lost again in the Constitutional Court, and then taken to the European Court of Human Rights, where it was, at last, won. But why on earth should those people have been put through that kind of torture to start with, all for an innocuous remark?
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The European Court of Human Rights reminded Malta that the truth of value judgments is not susceptible of proof. In other words, writers do not have to ‘prove’ their opinions, and cannot be made to do so. The ECHR declared that the Maltese courts had overstepped the narrow margin of appreciation afforded to them to restrict discussion on matters of public interest. It concluded that such interference had been disproportionate to the aim pursued, and had not been “necessary in a democratic society.”
Amen to that. The role of our courts is to uphold freedom of expression and not to uphold the frivolous and vexatious suits of public figures who can’t stand the heat in the kitchen, and who demand that they only be admired and never criticised, mocked or ridiculed. Grow up, Malta. It’s about time.