The Malta Independent 18 May 2022, Wednesday

MITLA poses numerous questions on proposed Media and Defamation Act

Thursday, 9 March 2017, 17:36 Last update: about 6 years ago

The Malta Information Technology Law Association has publicly released several questions in anticipation of a Q&A Session on the Media and Defamation Act being held tomorrow.

MITLA said it believes in the importance of the protection of our fundamental freedoms online.

"Basic human rights such as the freedom of expression should apply as much to the online world as they do in the offline world. More so new rights and legal tenets being developed for the Internet age should be relevant in a discussion surrounding IT Law.

Achieving this aim requires an important balance of regulatory know-how, deep technology awareness, content access and privacy principles.

In the following questions, MITLA is putting forward a varying amount of concerns, organised by thematic relevance, which are intended to assist Government in creating legislation which is fit for purpose and which safeguards freedom of expression in the digital age whilst serving as an effective tool for the right to reputation to be safeguarded.

They are as follows:

A. Comparative Law, Model Legislation, Industry Development

1. Government stated on the 17th February 2017 that it "is bringing a fresh approach and modernising laws, making them similar to, and in some instances even better than those of other modern democracies". What comparative models from other jurisdictions have been used in order to propose the "website" definition as currently contained in the MADA Bill as well as the obligatory registration pursuant to Article 19(2)?

2. Whilst the general European trend is for de-regulation of the Press (including de-regulation of traditional media as the UK Deregulation Act 20152), why is the MADA Bill proposing a model in which registration obligations (including websites) are directly linked with the State? Similarly, whilst the regulation of the press and other journalistic activities is falling more under the responsibility of industry led organisations, including Press Clubs, where membership is purely voluntary and not mandatory, why is MADA proposing a totally different route/approach?

3. The Government stated on the 17th February 2017 that "the new media bill was drawn up after consultation with various stakeholders". Could Government provide a list of the entities, organisations and private individuals consulted before MADA was published?

B. Human Rights

4. Notable ECHR case law regarding Article 10 of the European Convention of Human Rights have time and time again underlined the importance of legal certainty, including that a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct.3 Furthermore, the degree of precision depends on the content of the instrument at issue, the field it is designed to cover, and the number and status of those to whom it is addressed. How is MADA, including the wide discretion available to the Press Registrar where "decisions on grey areas would be taken on a case-by-case basis by the Media Registrar", align with the ECHR caselaw principles regarding precision and foreseeability of laws and/or norms affecting rights covered by Article 10 of the European Convention of Human Rights?

5. ECHR case law regarding limitations to the right(s) covered by Article 10 of the European Convention of Human Rights stress that any restrictions to such right have to be necessary in a democratic society and that any state interference should correspond to a pressing social need. Furthermore, any state response and the limitations provided by law should be proportionate to the legitimate aim pursued. How are the registration obligations proposed in the MADA Bill, including website registrations, aligned with the principles of necessity, proportionality and legitimacy as confirmed in such judgements?

6. UN Human Rights Committee's General Comment No. 34 on Article 19 of the ICCPR states that "a free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other Covenant rights" and that "defamation laws must be crafted with care to ensure that they comply with paragraph 3 of Article 19 and that they do not serve, in practice to stifle freedom of expression". How does MADA, through the proposed website registration obligations, balance the freedom and unhindered press principles as reflected in the position adopted by the UN HR Committee?

C. Private Life and Protection of Reputation

7. European Courts have innumerable times considered the balance that has to be achieved between the right to private life and the protection of reputation on one hand and the freedom of the media or freedom of expression on the other. Specifically, in Axel Springer AG, the Court established six criteria that should be considered when balancing the right to freedom of expression vis-a-vis the right to respect for private life: contribution to a debate of general interest; how well known the person concerned is and what is the subject of the report; the prior conduct of the person concerned; the method of obtaining the information and its veracity; the content, form and consequences of the publication; and the severity of the sanction. Furthermore, "the limits of permissible criticism are narrower in relation to a private citizen than in relation to politicians or governments". How does the MADA Bill reflect the 6 part test presented in Axel Springer AG as well as the wider scope of criticism in relation to politicians and governments pronounced in Castells?

D. Websites, Registration Obligation and Anonymity

8. The OSCE Guidebook on Media Freedom on the Internet concludes that "content regulation developed for traditional media cannot and should not simply be applied to the Internet". On the other hand, Government has defended the "website" registration obligations proposed by MADA "is only about an extension of what exists today" in the Press Act regulating traditional media. Can Government confirm that such assertion directly contradicts the conclusions of the OSCE?

9. In an interview with the Malta Independent on the 23rd February 2017, the Justice Minister was reported as saying that "the website registration clause under the proposed Media and Defamation Bill is there to address a situation in which a person can post anonymously about an individual, without that individual being able to seek out who is responsible or take appropriate legal action". How does the MADA bill espouse the recommendations presented in the 2015 Report of the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye where, inter alia, it was recommended:

 "With respect to encryption and anonymity, States should adopt policies of non restriction or comprehensive protection, only adopt restrictions on a case-specific basis and that meet the requirements of legality, necessity, proportionality and legitimacy in objective, require court orders for any specific limitation, and promote security and privacy online through public education";

and

"States should promote strong encryption and anonymity. National laws should recognize that individuals are free to protect the privacy of their digital communications by using encryption technology and tools that allow anonymity online. Legislation and regulations protecting human rights defenders and journalists should also include provisions enabling access and providing support to use the technologies to secure their communications.";

and

"States should not restrict encryption and anonymity, which facilitate and often enable the rights to freedom of opinion and expression. Blanket prohibitions fail to be necessary and proportionate." ?

Additionally, how does MADA Bill align with the position taken regarding the right to online anonymity as pronounced by various international organisations such as the Article 19 Foundation and the Electronic Frontier Foundation?

10. Technology Neutrality is a recognised pillar in legislative drafting, where laws aim at regulating principles and/or actions irrespective of the technology used. Why is MADA going against this well-established principle through the introduction of the definition of "website" as well as the related obligations?

11. Local case law has in many judgments recognised the applicability of the current Press Act (including the current definition of "printed matter") in relation to electronic news portals as well as blogs and other forms of information available on the Internet. What is the reason that the proposed MADA text is (i) amending the definition of "printed matter" and introducing a new "website" registration obligation when the Press Act had already (through the interpretation of the courts) applied in relation to information on the Internet?

12. With respect to "websites", what is difference between "its address on the web" and "domain name" as listed in Art. 19(2)(a)(i)?

13. What are the effects that Government is foreseeing in light of the territorial limitations included in the "website" definition? How will such territorial limitations be monitored/controlled/enforced in view of a globalised Internet with no fixed boundaries?

14. When a website is co-edited in a crowd-sourced manner by multiple individuals asynchronously (as with Wikipedia) yet is otherwise within the MADA's description of "website" (Art. 2), who should register as an editor? All individuals who contributed at any given time towards the editorial decision even if this may run in large numbers?

15. At the Budapest Summit in 1994, the participating States reaffirmed "that freedom of expression is a fundamental human right and a basic component of a democratic society. In this respect, independent and pluralistic media are essential to a free and open society and accountable systems of government. They take as their guiding principle that they will safeguard this right"This was echoed by the 1996 Lisbon Summit where the OSCE participating States declared that "[f]reedom of the press and media are among the basic prerequisites for truly democratic and civil societies.

In the Helsinki Final Act, we have pledged ourselves to respect this principle". If this Government is in favour of the free flow of information as well as the public's access to information, how is registration as a prerequisite to communication on news in any way acceptable to foster such environment?

16. The European Court has recognised that:"the State must not stand between the speaker and his audience and thus defeat the purpose for which the protection of expression is realised". Registration seeks to stand between the speaker and his audience on the pretext of necessity to know the editor and/or author. Please comment on how MADA follows the principle established by the European Court above.

E. Mere Conduit Principles

17. It is noted that the proposed Art. 12 of MADA is based on Art. 5 of the UK Defamation Act 2013. Art5. of the UK Defamation Act 2013 was and still is subject to substantial criticism. However there are a number of noteworthy differences in the texts. Why is MADA listing under Art 12(1) that the defence is merely for the "mitigation in damages" and not as reflected in Art. 12 of UK Defamation Act 2013? Is this running against the defences available under the Electronic Commerce Act? Why is the prerogative to make provision as to the activities listed in Article 12(5) of the proposed MADA in the Hands of the Minister when under UK law such procedures have to be discussed and approved by both Houses of Parliament?

18. Will the mere conduit defences found under the Electronic Commerce Act still apply to offences under MADA?

19. As experienced through the introduction and application of Art. 12 of the UK Defamation Act 2013, including the complex notice of complaint procedures, does Government believe that the same "chilling effect" as registered in the UK will be also registered in Malta?

F. Protection of Sources

20. Article 22(2) of MADA provides that "The protection of sources provided for in this article shall only apply in respect of editors or publishers of newspapers, broadcasting services, or websites who are registered with the Media Registrar and in the case of authors of publications in such media it shall only apply if the author habitually exercises the profession of journalist either on a full-time or on a part-time basis". In light of the wording of this Article, including the definition provided for "publication" in MADA, it appears that the protection of sources is being limited and directly linked to the registration obligation of websites. Please comment. Also, how does the right to protect sources apply to citizen journalists? Because of the new registration requirement it is anticipated that less sources may come forward thus dampening the overall level of journalism in this country - please comment.

G. Redress with regards to anonymous authors/websites

21. Reference is made to (i) Section 10 of the UK Defamation Act 2013, (ii) UK defamation case law whereby the defendant was an unknown author using the internet and/r a website with its owner unknown, as well as (iii) the Norwich Pharmacal orders as recognised in UK legal practice (and as partly available under Chapter 488 of the Laws of Malta). Does Government consider that the inclusion of a mechanism as found under Section 10 of the UK Defamation Act 2013, together with the establishment under Maltese procedural law of a Norwich Pharmacal type procedure (as opposed to website registration) would resolve any perceived/real issues that may exist with respect to suing anonymous persons/authors/operators in defamation proceedings? 

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