The Malta Independent 3 June 2020, Wednesday

The Media and Defamation Bill is an act of aggression by politicians against journalists

Daphne Caruana Galizia Thursday, 2 March 2017, 10:51 Last update: about 4 years ago

Janice Bartolo's boyfriend has taken his Media and Defamation Bill roadshow into town and is busy telling everyone who will listen that it improves things for journalists.

Really? How? Because from where I'm sitting, and as somebody who actually works in the field - as distinct from working for a political party and serving its interests, like his girlfriend does - it's patently obviously that this bill was designed to make things worse for journalists and not better.

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The biggest insult, the most fatuous of Owen Bonnici’s remarks, is the boast that there will be no more criminal libel (except for the ongoing cases against me and a couple of others, of course - that goes without saying). But then the same bill almost doubles the amount of damages to which journalists may be liable if they lose a civil suit for libel. You can't take the repeal of criminal libel in isolation. You have got to see what they are doing instead, and what they are doing instead is almost doubling the penalties we will have to pay under civil law. In short, they are making the situation worse for journalists and not better.

This is what we have now: criminal libel with reasonable fines and, despite the propaganda to the contrary, no prison time (that was removed in 2006); and civil libel suits with maximum damages of €11,850, currently heard efficiently by a magistrate who specialises in them.

This is what Owen Bonnici plans for us with his new bill: no criminal libel, and civil libel suits with maximum damages of €20,000, which then will have to be heard by a judge. Libel cases used to be heard by judges before; they moved down to the magistrates' courts when the monetary threshold for cases heard by magistrates was raised. The process was absolutely terrible. I have one case that has been pending before a judge for 18 years, since 1999.

Any sane, rational journalist is going to choose what we have now over what Bonnici plans to slap on us with his Media and Defamation Bill, which is set for debate in Parliament 27 March. Improvement for journalists, my left foot. How is doubling the damages they threaten us with in any way an improvement of our circumstances? Of course, some journalists don't seem to mind. They are the sort of journalists who have never written anything that you might notice, and take great pride in the fact instead of being wholly embarrassed by it. "Qatt ma kelli kawza ta' libel," Karl Wright, chairman of the Institute of Maltese Journalists, said on television the other day. Obviously not, and I don't mean to be rude here, but has anyone read anything he's written?

Karl Wright is a typical example of the chilling effect which the threat of easy libel suits has on the way Maltese journalists cover stories and write generally. Instead of going to great lengths to give his readers and listeners the information they need to know what’s really going on beneath the surface, he goes to great lengths to stay out of court. Staying out of court while doing a proper job as a journalist is practically impossible in Malta, because suing for libel is incredibly easy to do, and you don't even need prima facie grounds to do it. There are no penalties for frivolous cases.

Bear in mind that Toni Abela, now a judge, sued me for calling him a clown and kept me in court for eight years using his notorious procrastination tactics, only to, obviously, lose the case. And Konrad Mizzi and Keith Schembri have sued The Malta Independent and The Times of Malta for reporting on actual documents which are contained in the Mossack Fonseca tranche, and which cannot be disputed. Both newspapers have access to the full documentation through partnership agreements with the International Consortium of Investigative Journalists.

Over the past couple of weeks, I have become sick of the sight and sound of posturing Maltese journalists patting themselves on the back because of the "great care" they take when they write or report stories. They present this to others, probably because they actually believe it themselves, as "great care" for their professional responsibilities or the lives and reputations of others. But if they were honest, which they tend not to be, they would admit that what it really is, is great care to avoid having to spend the next five or six years in court because they called a crook a crook.

Prosecution for libel (criminal) is not more of a threat to journalists than a civil suit for libel with the threat hanging over it of 20,000 euros in maximum damages. The fines for criminal libel are a fraction of 20,000 euros and the court process is the same, with the difference that in prosecutions, because they are police cases, the accused - the journalist - has to be there for every sitting, which is extremely tedious.

The reason why the criminal libel law should be repealed is purely ideological and nothing to do with hardship caused to journalists, as the hardship is worse in civil suits because the potential damages we have to pay are higher, and the cases are fought and defended in exactly the same way - by lawyers, because the police maintain merely a token presence.

The ideological reason is that in a country which espouses free-speech principles, you can't have the police prosecuting journalists for writing about politicians, or prosecuting ordinary citizens for writing about others. Owen Bonnici is not bothered about that ideological aspect, though, because he thinks it is quite all right for the police to continue hounding me through the courts at his corrupt cabinet colleague Konrad Mizzi's request, even after the law is repealed.

Everyone seems to be focussed on the internet-registration clauses in the bill, with the result that there has been no discussion at all about this - in my view -  far greater threat and danger to journalists. Nothing is more guaranteed to have a freezing, rather than chilling, effect on journalists and editors than the prospect of a libel suit heard by a judge in the superior courts, with the threat of having to pay 20,000 euros in damages if you lose. The only thing that can have a more chilling effect than that is an even higher ceiling for damages.

The argument that journalists who base their opinions on facts, and who write the facts, have nothing to worry about is a fallacy that only a non-journalist, or a children’s-jelly-style journalist, could make. I am currently in court on four separate cases, with my bank account frozen, for reporting that the Economy Minister and his EU policy aide were in a house of ill repute while on official business in Germany, and this on a thoroughly reliable eyewitness report. If I had decided to let the prospect of libel suits and other aggressive action by a powerful cabinet minister frighten me into not reporting it, then the country wouldn’t have found out what he was up to, and people would have had to think of something different for their carnival costumes than a white bathrobe and a Cardona mask. You have to ask yourself how many real stories are going unreported because journalists, and more properly their editors, are terrified of retaliatory action by the people written about.

The politicians of the Opposition and journalists' lobby groups - are there any? - should take this up immediately. Because you can defy a law which tells you to register your website, which I for one fully intend to do, but you can't defy the Courts. If somebody sues you for 20,000 euros in damages, consider yourself sued and there is nothing you can do about it but allow yourself to be slowly ground through the judge's court for eight years with that big shell-out hanging like a guillotine over you.

That Media and Defamation Bill is nothing short of an act of hatred towards journalists. Journalists don't sue politicians for libel. It is politicians who sue journalists. So what we have here is a situation in which politicians have written a bill, and will vote it into law, which will allow them to sue journalists for twice as much money as they do already.

And that, dear readers, is not an act of assistance to journalists but an act of aggression towards them.

 

www.daphnecaruanagalizia.com

 

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