In its judgement, decided on the 23 March 2022, in the names of Adrian Muscat vs. Matthew Agius, the Court of Appeal in its inferior jurisdiction (the "Court of Appeal"), delivered by Judge Lawrence Mintoff, considered a case on libel and defamation following the decision of the Court of Magistrates on 14 June 2021 (the "Court of First Instance").

The facts of the case were as follows:

On 24 August 2016, Mr. Agius published a news article in a local newspaper which referred to the claimant, Mr. Muscat, and his brother. The subject of the news article mentioned Mr. Muscat and his brother in the context of alleged attempted insurance fraud and road rage threats (the "News Article"). Mr. Muscat then proceeded to file a case in the Court of First Instance to claim compensation for damages and for the court to declare that the News Article was defamatory and libellous.

The claimant argued that the full contents of the News Article were not based on true facts. Although many of the facts set out by the Mr. Agius, such as the legal proceedings mentioned in the News Article were verifiable and substantially true, the claimant argued that the facts of the complaint set out in the lawsuit were not based on true facts, and this was the part of the publication which the claimant felt defamed by.

The Court of First Instance went into the justification of the term 'rumour', where the Courts of England and Wales have repeatedly stated that this does not require the respondent to adduce evidence that the claimant was suspected of a criminal offense, or there were reasons to be so suspected, but instead the respondent must adduce evidence that the claimant did indeed commit the offense in question.

However, the deciding factor of the decision of the Court of First Instance was that upon reading the News Article, a reasonable reader with a level of ordinary intelligence would conclude that it is unclear who the person being referred to in the News Article actually is (i.e. which of the two brothers was actually being slandered in the News Article). The Court of First Instance held that it is not possible for two persons to be the sole subject of the alleged defamation at the same time. Although it was clear that the defamation was directed at one of the brothers, it was unclear which of the siblings. Therefore, the Court of First instance concluded that there was a lack of the necessary elements for a case of defamation and libel to be present, and did not decide in favour of the claimant, Mr. Muscat.

The Appeal:

Mr. Muscat felt aggrieved by the decision of the Court of First Instance and proceeded to appeal on the grounds that the Court of First Instance was not correct when it made its decision on the basis of resting on Mr. Agius' arguments i.e., that the news article was written based on true facts and information. Mr. Agius replied by saying that the decision of the Court of First Instance was just and fair and should therefore be confirmed on appeal.

The Court of Appeal's considerations:

The Court of Appeal considered the appeal in light of the decision of the Court of First Instance. The appellant argued that he felt defamed by the words in the News Article relating to the accusation of attempted insurance fraud, although the appellant was never actually mentioned by name. The News Article only separately mentioned that the appellant was at least one of two brothers, but there was no reference to any one of them in relation to the incident mentioned in the News Article. Mr. Agius argued that the Maltese Courts have frequently ruled on the identification of the claimant in a libel case, and although as a general principle there is no need for the claimant to be mentioned by name, it should be clear in the mind of the ordinary reader to whom the reference relates. Mr. Agius insisted that in this case, the appellant has not adduced any evidence that the ordinary reader could recognize his identity and even that it was he and not his brother who was being referred to in the News Article in relation to the incident. Mr. Agius also cited Gatley on Libel and Slander and stated that in this case, the identification of the claimant (which is an essential element in a libel case), is completely missing, and therefore this ground of appeal must be rejected. Mr. Agius maintained that in any case the News Article was not defamatory and explained that the News Article referred to the alleged attempted fraud of an insurance company, without mentioning any names or even claiming that someone was guilty of the said conduct. Mr. Agius pointed out that the facts of the incident were not formulated or thought up, but the appellant was really involved in the incident referred to in the News Article.

The Court of Appeal's decision:

On the merits of the case, the Court of First Instance held that there had been several judgements of the Courts on the element of identification of the subject, and it did not consider it necessary for the purposes of these proceedings that the person subject to the defamation be identifiable by the general public, but that it be at least identifiable by those who knew him. The Court of First Instance considered that in the present case it had not been established that the persons who knew the appellant knew that it was he and not his other brother who was involved in the incident in question. The Court of Appeal said that one could perhaps assume this fact, but did not conclude it on the basis of probability.

The Court of First Instance concluded that the appellant cannot be considered to have brought an action against Mr. Agius for defamation, because there is no clear indication in it that he was the subject of the writing. The Court of First Instance also stated that the subject of the alleged defamation could only refer to one of the brothers but did not mention which of them it was. It concluded that none of them could sue Mr. Agius due to the lack of evidence showing that the ordinary reader who knew the siblings also knew who he was referring to. The Court of First Instance observed that the conclusion would not be the same in the event that Mr. Agius mentioned the two brothers together as suspects of fraud, because in that case, both brothers would have had the right to proceed against Mr. Agius. The Court of First Instance therefore concluded that in the absence of that very important element, the action brought by the appellant could not be successful.

The Court of Appeal fully agreed with the conclusions of the Court of Frist Instance and therefore did not find the appellant's pleas to be justified. The Court of Appeal dismissed the appeal and upheld the judgement in its entirety.

 

Alexia Cassar is an Advocate at Ganado Advocates