(last accessed Jan. 2, 2015).

Transcription

1 MALTA I. OVERVIEW OF CRIMINAL LAW a. Criminal defamation Defamation is a criminal offence under Art. 252 of the Maltese Criminal Code. 1 Offending a person with the object of destroying or damaging his reputation, is punished with up to three months in prison or a fine (multa) 2 ; however, when the defamatory content is divulged or exhibited to the public the maximum punishment increases to one year in prison. Defamation consisting of vague expressions or indeterminate reproaches, or in words or acts which are merely indecent is punishable only as a contravention, i.e., a civil infraction. Art. 256 states that defamation committed by means of the media is subject to the terms of the Press Act, 3 which specifies in Art. 11 that libel is punishable by a fine. 4 However, if defendants seek to prove the truth of the allegation, and cannot do so, a prison sentence of up to six months may be imposed (Art. 12). Finally, according to Criminal Code Art. 339(3), any person who utters insults or threats not otherwise provided for in this Code, or being provoked, carries his insult beyond the limit warranted by his provocation is guilty of a contravention. b. Statutory defences Truth Both the Criminal Code and the Press Act offer a qualified defence of truth for defamation, although these differ in scope. Art. 253 of the Criminal Code provides that truth is generally not a defence unless the person aggrieved is a public officer or employee in virtue of his function. The burden of truth lies with the defendant, and if the defendant claims truth as a defence, but fails to prove it, the court may... increase the punishment by one or two degrees. According to Art. 12 of the Press Act, truth can be a defence for defamation only if the offended party is a public figure, specifically if he or she is: a) a public officer 5 in virtue of his function; b) a candidate for a public office and the facts attributed to him refer to his honesty, ability or competency to fill that office ; c) habitually exercises a profession, an art, or a trade and the facts refer to the exercise of such; (d) takes an active part in politics and the facts attributed to him refer to his so taking part in politics ; or (e) occupies a position of trust in a matter of general public interest. 1 Maltese Criminal Code (June 10, 1854, last update 2014), available at (English): (last accessed Jan. 2, 2015). 2 The Maltese Criminal Code provides for two types of fines, multa and ammenda. Art. 11 explains that, unless otherwise indicated (as also done in this report), the maximum and minimum fines in the multa category are 1, and 23.29, respectively. See note 6, infra, regarding the ammenda category. 3 Press Act (Aug. 23, 1974, last update 2012), available at (English): (last accessed Jan. 2, 2015). 4 IPI notes here the possibility of confusion over jurisdiction for press offences. Although the Criminal Code explicitly refers all press offences to the Press Act, the latter states in Art. 22 that if an offence under the Criminal Code is punishable with a higher punishment than that imposed by this Act, the higher punishment applies. This appears to suggest that, theoretically, the prison sentences under the Criminal Code could still be applied against the media of the Criminal Code defines the term public officer includes not only the constituted authorities, civil and military, but also all such persons as are lawfully appointed to administer any part of the executive power of the Government, or to perform any other public service imposed by law, whether it be judicial, administrative or mixed.

2 Privileged or third-party speech [Qualified privilege] Press Act Art. 12A provides a defence for accurate report of a speech made at an important public event by an identified person who knew or could have reasonably known or expected that the content of that speech was to be published... and that the publication of the said speech was reasonably justifiable in a democratic society. [Privileged communication] No criminal or civil actions can be brought in respect of publications related to acts of the President or Parliament, parliamentary debates, court proceedings et al. (Art. 33) c. Provisions protecting honour of public officials There is no increased protection for public officials related to the offence of defamation as set forth in Criminal Code Art. 252 or in the Press Act. However, both Acts single out the President of Malta for protection. Anyone who shall impute ulterior motives [to the president]... or shall insult, revile, or bring into hatred or contempt or excite disaffection against him or her via print or broadcast may face up to three months in prison and a maximum fine of under Press Act Art. 5. Under Criminal Code Art. 72, whosoever shall use any defamatory, insulting, or disparaging words, acts or gestures in contempt [of the President] or shall censure or disrespectfully mention or represent [the President] by words, signs, or visible representations may face up to three months in prison or a fine (multa). Criminal Code Art. 93 punishes reviling or threatening a judge, the attorney general, or a magistrate or juror with a prison sentence of nine to 18 months and a fine of 500 to 1,500. However, when the aim of the reviling is to damage or diminish the reputation of the subject concerned, the punishment is increased to 12 months to two years in prison and a fine of 700 to 2,500. Art. 95 contains a related provision for the reviling any person charged with a public duty. In addition, Art. 74 punishes conspiracy to excite hatred or contempt toward the person of the President of Malta or towards the Government of Malta with between six and 18 months in prison. d. Provisions protecting the state, its institutions or its symbols Press Act Art. 5(2) provides that insulting or showing contempt toward the Maltese flag via print or broadcast media is punishable by up to three months in prison and a fine not exceeding e. Provisions protecting for foreign officials, states, and symbols f. Provisions on blasphemy or religious feeling Vilifying or offending the Roman Catholic Church or any object of worship thereof is a criminal offence under Criminal Code Art. 163 and punishable by one to six months in prison. Vilifying or offending any other religion tolerated by law is punishable by one to three months in prison (Art. 164). Further, where an individual utters an insult that consists of blasphemous words or expressions, he or she faces a minimum punishment of a fine (ammenda) 6 of and a maximum punishment of three months in prison (Art. 342). 6 Ammenda fines normally have a minimum of 6.99 and maximum of 58.23, unless otherwise stated (Criminal Code Art. 13).

3 g. Provisions protecting the deceased Neither the Criminal Code nor the Press Act contain a clause specifically establishing protection for the dead. However, Criminal Code Art. 255 implies that it is possible for family members to file a claim for defamation when the offence is committed against the memory of a deceased person. h. Other notable criminal provisions related to honour Anyone who, in a public speech or in comments at a public meeting, imputes misconduct to a person employed or concerned in administrating Malta s government faces up to one year in prison or a fine (multa) (Criminal Code Art. 75). Press Act Art. 7 specifically punishes obscene libel i.e., the use of expressions harming public morals or decency with up to three months in prison and/or a fine (multa). Criminal Code Art. 208, also makes the manufacture, distribution or public display or any obscene print, painting, photograph, film, book, card or writing, or any other pornographic or obscene article whatsoever punishable by six to 12 months imprisonment and/or a fine of 1,000 to 3,000. II. OVERVIEW OF CIVIL LAW a. Civil defamation Procedure for civil defamation is regulated under the Press Act, and civil and criminal actions for the same defamatory content can be undertaken concurrently or separately (PA 27). b. Damages Compensation for non-pecuniary damage is capped at 11, and can only be awarded only if the object of the alleged defamation was to injure reputation or if the offender slandered a business in a way likely to harm its activities (Press Act Arts ). III. AMENDMENTS, CASE LAW, and APPLICATION a. Recent amendments to criminal or civil law The decriminalisation of defamation in Malta has been a topic of political discussion in recent years. In 2012 a parliamentary committee reportedly indicated approval for decriminalising libel, although some members supported an increase in awards allowed in civil libel suits, partially in order to combat the alleged rising potential for harm due to the Internet 7. In January 2013, then-opposition leader, now prime minister, Joseph Muscat stated that he agreed criminal libel should be reformed. 8 No legislative progress has been reported since. b. Relevant case law In addition to the statutory defences noted above, IPI notes that the defence of fair comment is well established in Maltese jurisprudence. In 2009, a lower court emphasised that critical opinions on true facts are protected by freedom of expression, even if an opinion had negative consequences for those involved. The court threw out a civil 7 MPs call for removal of criminal libel, updating of laws, Times of Malta, 30 April 2012, available at 8 Miriam Dalli, Time for a rethink on criminal libel laws, Muscat says, Malta Today, 26 February 2013, available at

4 lawsuit against Illum journalist Kurt Sansone by the secretary of the Maltese hunting federation (FKNK), Carmel (Lino) Farrugia, over a 2007 article reporting that Farrugia told a meeting in Brussels that hunters who shot at protected birds knew what they were doing. Sansone further noted that the FKNK would not have welcomed the remark. Farrugia acknowledged that the report was true, but he sued Sansone for libel, alleging that the journalist s commentary put him in a bad light with his fellow hunters. 9 In Feb. 2014, a lower court cited fair comment in ruling in favour of Malta Independent editor Steve Calleja and the former president of a local football team, Robert Arrigo, in a civil suit brought over a 2005 opinion piece written by Arrigo and published by the Independent. The piece reportedly suggested that the then-president of the Malta Football Association, Joe Mifsud, had introduced rules limiting the number of foreign players in order to put the governing Nationalist party in a bad light. The presiding judge cited both English and European Court of Human Rights (ECtHR) case law on fair comment in his ruling, and considered whether the statement was a value judgment vs. a statement of fact; whether the opinion was related to facts; whether the facts constituted a matter of public interest; and whether the opinion could be seen as honestly founded upon the facts. The court, quoting the ECtHR, concluded that Arrigo s opinion, as an honestly held judgment on publicly relevant facts, was protected by freedom of expression with regard to pluralism, tolerance and broadmindedness without which there is no democratic society. 10 In terms of reasonable publication, Maltese courts generally accept a defence of good faith. However, recent case law challenges the strength of this defence. In 1995, a reporter for the Times of Malta, Sharon Spiteri, attended a court hearing in a bigamy case. On the day of the hearing, the defence attorney did not show up, ostensibly due to a fee dispute with his client. In the chaotic atmosphere that ensued, Spiteri heard the presiding judge find the attorney ( Dr. A ) to be in contempt of court. She attempted to verify this afterward with the judge and court recorder, but both already had left. Spiteri did, however, confirm what she had heard with another reporter who had been in the room. On the next day, the Times published an article entitled Lawyer found in Contempt of Court. After receiving a complaint from Dr. A as to the article s veracity, Spiteri went back to check the official court record, which supported Dr. A s account. The Times published a retraction the next day, but the Dr. A. sued Spiteri and the paper s editor and publisher for libel. The attorney representing the trio pleaded good faith, arguing that Spiteri had reported what she honestly thought she had heard and that she had dutifully attempted to verify the information as much as reasonably possible. In addition, the prosecutor in the bigamy case testified that he also thought the judge had held the defence attorney in contempt and that he believed the article to have accurately reflected what transpired in court. The court in Dr. A s libel case, however, ruled in his favour and awarded damages of 320 ml ( 720). The Court of Appeal rejected the appeal in In 2004, the defendants appealed to the Constitutional Court, which also rejected their defence. The Constitutional Court held that Spiteri should have verified the judge s remarks with the court records in accordance with journalistic duty. An appeal was then lodged with the European Court of Human Rights (Aquilina and Others v. Malta, 2011), which found a violation of Article 10. The Court found that, given the evidence of witnesses who said they heard Dr. A being held in contempt, Spiteri s conclusion from what she had seen and heard 9 Libel suit over hunting comment dismissed, Times of Malta, 10 March 2009, available at 10 Dottor Joseph Mifsud vs. Onor Robert Arrigo u Stephen Calleja, Qorti Tal-Magistrati, Avviz Numru. 290/2005, 24 February 2014, available via Waylon Johnston, Football libel case article judged fair comment, Times of Malta, 25 February 2014, available at

5 appeared reasonable, despite what the court record contained. Moreover, the Court found no reason to doubt [Spiteri s] account that she attempted to verify her perception of what had taken place in the court room [and that] such an action would be entirely in line with best journalistic practices. It explained: In the circumstances of the present case, [Spiteri] could not reasonably have been expected to take any further steps, especially since news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest. 11 In 2012, a court ordered Sunday Times editor Steve Mallia and journalist Ariadne Massa to pay 11,500 in moral damages to four executive members of the Malta Union of Midwives and Nurses (MUMN) over an article in which Massa reported that an unnamed top MUMN official was being investigated for corruption. Although neither the article s factual claims Massa had relied on an official health ministry report nor the existence of public interest were in dispute, the court found that by information was defamatory due to the manner in which it was expressed. The court said that it could almost conclude that the paper, by describing the nurse as a top official, had colluded with the health ministry to tarnish the reputations of the four executive members. None of the four members was, in fact, the nurse under investigation. Massa argued that she had acted in good faith; as the nurse in question headed an MUMN subcommittee, she considered him to be a top official. The court, however, reportedly ruled that the average reader would understand top official to mean a member of the executive committee. An appeal is currently pending before the Court of Appeal. 12 On the other hand, several recent, key decisions by Malta s Court of Appeal have underscored that, in the case of serious and prudent investigative journalism, public interest outweighs the right to honour, even when errors in reporting are made. In March 2014, the Court of Appeal overturned a civil libel judgment against a former editor of the newspaper Il-Mument, ruling that serious investigative journalism was protected even if the reporting contained errors. 13 In 2010, a lower court had ordered the editor, Victor Camilleri, to pay 1,700 in damages to a former police commissioner, Lawrence Pullicino, over a 1997 article alleging that Pullicino had received special treatment while serving a 15-year prison sentence for manslaughter, later reduced to seven-and-a-half years. According to the article, Pullicino had been allowed extra phone calls, visits and time outside of his cell. The Court of Appeal ruled that there was enough evidence to support Il-Mument s conclusion regardless of whether, for example, details such as the reported number of exact calls Pullicino was allowed per day were factually accurate or whether there were other prisoners who may also have received privileged treatment. From where, and how, the newspaper got the information was not relevant to the case because investigative journalism should always be protected even if there are mistakes in the reporting, the court s opinion stated. In 2012, the Court of Appeal reversed a civil judgment against a journalist accused of libelling a Maltese MP and former government minister, Louis Galea. The case dated to 1997, when Galea sued journalist Joe Mifsud over a book and a subsequent press release in which Mifsud reported that the name of Galea s brother was found in a diary belonging to an Italian citizen banned by the Maltese authorities due to suspected involvement in drug trafficking. Galea claimed his reputation was unlawfully damaged and a lower court agreed, ordering Mifsud to pay Galea 5,000 in damages. However, the Court of Appeal, quoting ECtHR case law, affirmed that serious and prudent investigative journalism on a matter 11 Aquilina and others v. Malta, no /08, ECHR 2011, available at 12 The Sunday Times of Malta fined for libel, Malta Today, 17 September 2012, available at Sunday Times files libel appeal, Times of Malta, 7 October 2012, available at IPI interview with attorney. 13 Waylon Johnston, Appeal court clears editor of ex-commissioner libel, Times of Malta, 29 March 2014, available at Chris Mangion, Court protects investigative journalism, Malta Today, 28 March 2014, available at

6 of public interest outweighed the right to honour, especially for persons in public life, who were expected to accept more criticism than private individuals. 14 The Court of Appeal s decision here has been contrasted with a 2004 ruling on a separate libel action over the same material, in that case brought by a lawyer connected to a custody dispute involving one of Galea s children. The Court determined that this was a private matter, not one of public interest, and that the printing of the respective allegations therefore was not justified. 15 c. Recent examples of cases involving the media In October 2011, Saviour Balzan, managing editor of MediaToday, instituted criminal libel proceedings against Steve Mallia, editor of The Sunday Times, after Mallia in an editorial accused Balzan of using his opinion column to target clients who refused to advertise with MediaToday. (28 October 2011). Balzan later dropped the case after the two reportedly agreed that refraining from attacking one another was in the best interest of their readers and media organisations, and they issued a joint call for the decriminalisation of defamation. 16 Malta Independent columnist Daphne Caruana Galizia has been the subject of several criminal libel actions: In 2010, she was fined 1,165 over a 2003 article critical of then-labour Party deputy leader Anglu Farrugia. The court reportedly found that Caruana Galizia had practiced militant journalism with the intent to harm Farrugia s reputation. 17 In 2012, Caruana Galizia was again charged with libel, this time after she printed allegations that a Maltese politician, Edgar Bonnici Cachia, was a co-conspirator in the attempted assassination of former Libyan Prime Minister Abdul Hamid Bakkush in In 2013, she was fined 100 for contempt after failing to show up for a hearing in the case Caruana Galizia also reported in 2012 that an MP had posted on his Facebook wall a section of the criminal code prohibiting defamation of the president presumably Criminal Code Art. 72, above after she criticized the president s plans for missionary work in Peru. 20 In 2012, criminal libel charges were filed against Labour MP Joe Mizzi and the editor of the party s news programme ONE News, on a complaint by Richard Cachia Caruana, former ambassador to the EU. The charges arose over comments Mizzi made on the programme about allegations that Caruana had pressured Mizzi to have the country s head of Security Services removed, allegedly for personal reasons Galea Louis Dott vs. Mifsud Joe, Appell Civili Numru. 944/1997/1, 03 February 2012, available via Court of Appeal overturns Ciro del Negro libel judgment, Malta Star, 4 February 2012, available at Raphael Vassallo, Del Negro libel case - a welcome judgment for the press, Malta Today, 9 February 2012, available at 15 Court confirms libel award on Ciro Del Negro book, Times of Malta, 28 September 2004, available at 16 Joint statement by the editors of The Sunday Times and Malta Today, Times of Malta, 7 October 2012, available at 17 Caruana Galizia fined in criminal libel case, Times of Malta, 7 October 2010, available at 18 Magistrate orders blogger to be escorted to court; DCG replies, Malta Independent, 7 May 2013, available at 19 The Labour Party: a hitman for a candidate, Daphne Caruana Galizia s Notebook, 30 August 2011, 20 Daphne Caruana Galizia, Civil Liberties Jeff Wants journalists jailed, Malta Independent, 19 April 2012, available at 21 Cachia Caruana institutes criminal proceedings against Joe Mizzi, Times of Malta, 14 July 2012, available at

7 In 2012, Malta s Olympic Committee chairman Justice Lino Farrugia Sacco brought criminal libel charges against Times of Malta editor Ray Bugeja and journalist Christian Peregin after the latter reported about a U.K. Sunday Times article on the sale of Olympics tickets that Farrugia Sacco said falsely implied that he was under investigation for corruption. 22 In 2013, Lawrence Zammit, the chairman of Malta Enterprise, the national development agency, filed six libel cases over media reports published from Jan. 1 to 3 that year linking him to a company being investigated in Italy for money laundering. Zammit filed one civil and one criminal defamation suit, each, against Josef Caruana, editor of L-Orizzont; Aleander Balzan, editor of inewsmalta.com; and Alternattiva Demokratika Deputy Chairman Carmel Cacopardo, who made the allegations in a blog post. 23 In 2011, editor Mark Camilleri and author Alex Vella Gera were acquitted of violating Criminal Code Art. 208 (distributing pornographic or obscene material) after publishing a sexually explicit story in student newspaper Realtà. The judge ruled that simply because the piece was shocking and evoked disgust in readers did not mean that it could be qualified as obscene and pornographic MOC president explains his position in libel case, Times of Malta, 17 January 2013, available at 23 Six libel suits on Italy probe, Times of Malta, 5 January 2013, available at 24 Waylon Johnston, Court rules explicit story not obscene, Times of Malta, 15 March 2011, available at