Dr Michael Farrugia

Vs

Dr Louis Deguara

Chief Justice Vincent De Gaetano

Judges

Joseph D. Camilleri

Joseph A. Filletti

Court of Appeal

28 September

This was an appeal of a judgement delivered by the First Hall, Civil Court in November 2004. The case concerned defamatory libel. Minister Louis Deguara was deemed to have defamed Labour MP Michael Farrugia by virtue of an article published in the newspaper In-Nazzjon in July 1999. As a result the court had condemned him to pay Lm800 in damages under the Press Act for the article he wrote. The First Hall Civil Court rejected the plea that the plaintiff was neither identified nor identifiable in the article. The court ruled that plaintiff had sufficiently proved that defendant had made unfounded accusations and stated that he had squandered public funds and was the subject of scandal and corruption.

Minister Deguara appealed from the above judgement. He claimed Dr Farrugia was neither identified nor identifiable in the article in question.

The Court showed that the starting point was to understand that “to succeed in an action of defamation the claimant must not only prove that the defendant published the words and that they are defamatory; he must also identify himself as the person defamed” Gatley on Libel and Slander (2004), p.182. If the plaintiff was neither identified nor identifiable, then the story would stop there.

Dr Deguara explained that his article referred to the Department of Health. Dr Farrugia was the minister responsible for this department between 1996-1998. However, nowhere in the article did defendant attack Dr Farrugia personally. According to the author P. Carey in his book Media Law 1996 page 43, “The plaintiff must show that the words were published of and concerning him. It will be no defence that the plaintiff is not referred to by name if he would be capable of being identified by the reasonable person… The test, in every case, is whether reasonable people would understand the words to point to the plaintiff personally.”

Furthermore, according to Gately “where the libel does not ex facie refer to the plaintiff, extrinsic evidence must be given “to connect the libel with the plaintiff”. The court stated that in libel cases, it is very important that a balance is maintained between the right to freedom of expression and the obligation of the press to inform the public as well as the right of the individual to his reputation.

In this context, the Court made reference to Karen Reid’s A Practitioner’s Guide to the European Convention on Human Rights where she stated that “The important role played by politicians themselves in contributing to public debate has also been recognised (by the European Court of Human Rights). Elected representatives represent their constituents, defending their concerns and interference in their role calls for the closest scrutiny.”

The Court moved on to refer to David Price and Korieh Duodu who claimed in their book Defamation: Law, Procedure and Practice: “Perhaps of greater importance as regards freedom of expression is the fact that, where an allegation is made against a group of people, any member of the group can bring a claim for defamation, unless the group is so large that no one member can reasonably claim to have been identified. This can inhibit freedom of expression. In Bladet Tromso and Stensaas v. Norway, 20/5/1999, the European Court was clearly influenced by the fact that none of the seal hunters were named. Under the common law they would have been sufficiently identifiable to maintain a claim. It may be that the English courts will continue to construe the principles of identification in a manner that is more favourable to publishers, and/or be more willing to uphold a defence of qualified privilege where the allegation is against a group as opposed to named individuals.”

The Court referred to the English position explained by Gately Libel and Slander op. cit. pp. 184-186) - “The issue of identification is to be decided on the same principles as those which govern the question of whether the words are capable of a defamatory meaning. Where the claimant is expressly identified by name, it is not necessary to produce evidence that anyone to whom the statement was published did identify the claimant. The question is not whether anyone did identify the claimant but whether persons who were acquainted with the claimant could identify him from the words used…Where the claimant is referred to in an indirect way or by implication it will be a question of degree how far evidence will be required to connect the libel with him. At one extreme, if there is a libel on ‘the Prime Minister’ that officer does not need to produce witnesses to testify that they know who he is. At the other extreme, the claimant may only be identifiable by reason of extraneous facts which are not generally known, in which case there is no actionable publication unless it is shown that the words were communicated to persons with such knowledge.

“Even in the latter type of case, however, it is not enough that the recipients of the statement did understand it to refer to the claimant: the issue is whether reasonable people with their knowledge would so understand it…The general rule is that a statement is to be understood in the way in which a reasonable recipient would understand it at the time it is published: subsequent knowledge which makes the recipient look back on it in a different light will not make it defamatory…it is immaterial that the defendant did not intend to refer to the claimant, or did not even know of his existence. The question is: Would the words complained of be understood by reasonable people who knew the claimant to refer to him?” According to Price and Duodu “…The test is whether reasonable readers generally or a reasonable reader with the particular knowledge would understand the statement to refer to the claimant. Mere conjecture that it might refer to the claimant is insufficient…The test is objective and the intention of the defendant in this as in other areas is irrelevant for the purposes of proving the claimant’s case…”

The article did not mention Dr Farrugia by name. Nor did it mention his previously held position as Health Minister. What was mentioned was the Labour government and the party and the Health Department when the Labour Party was in government. The court stated that regarding the question of identification, there was no doubt that politically, it is indeed a government minister who responsible for the operation of his/her department. The court had to ascertain whether the allegations made by Dr Deguara were in fact targeted at Dr Farrugia personally.

The Court of Appeal decided that should it be decided that every criticism targeted at a department is tantamount to a personal attack on the minister responsible, the possibility of criticism of the public administration would indeed by stultified, going against all democratic principles. The Court of Appeal hence upheld the appeal of Defendant and overturned the judgement of the First Hall, stating that there was no sign of a personal attack on Dr Farrugia in the article in question.