Judge dismisses constitutional plea by The Times in libel case

A constitutional application filed by a former editor of The Times following a libel judgment was yesterday dismissed by Mr Justice Joseph R. Micallef, sitting in the First Hall of the Civil Court.

Lawyer Tonio Azzopardi had been awarded Lm300 libel damages after a law report in The Times wrongly said he had been found in contempt of court.

The mistake had been rectified the next day when The Times also carried an apology.

A libel suit was filed after The Times carried a news item headed Lawyer Found In Contempt Of Court on June 21, 1995. The report was followed the next day by another headed Lawyer Not Found In Contempt Of Court.

Dr Azzopardi sued Victor Aquilina and Austin Bencini, editor and printer of The Times, and also Sharon Spiteri.

The Civil Court had, in a judgment delivered on November 5, 1999, dismissed the pleas filed by The Times and had awarded Dr Azzopardi a total of Lm300. The judgment was confirmed by the Court of Appeal.

Mr Aquilina, Dr Bencini and Ms Spiteri then filed a constitutional application claiming that their rights to freedom of expression and to publish a report of what had occurred in judicial proceedings open to the public had been violated.

The court heard that Dr Azzopardi had been representing Olaf Cini before the Magistrates' Court at the time. On May 2, 1995 Dr Azzopardi had failed to appear when the case was called and the sitting was put off to May 16. On that occasion, Dr Azzopardi had explained to the court he had not appeared previously because he "had not finalised his professional rapport with the defendant".

The case was put off for final submissions with the proviso that if the situation repeated itself the case would be put off for judgment.

At the next sitting, on June 20, Dr Azzopardi failed to appear.

Mr Cini told the court his lawyer had asked him for the money he owed him and Mr Cini had replied he did not plan to give him any more money.

Mr Cini told the court he wanted to find another lawyer and the Magistrates' Court, while remarking that the request he had made verged on contempt at that stage of the proceedings, ruled it was upholding Mr Cini's request in the circumstances.

The records of the proceedings had reflected what had happened at the sitting but it resulted from the evidence produced before the first court hearing the libel suit that Police Inspector Peter Paul Zammit had thrown more light on the matter in his evidence.

The inspector had told the first court that the magistrate had asked Mr Cini for an explanation as to why his lawyer had not attended the sitting.

Mr Cini had claimed he had paid his lawyer some Lm3,000 and the lawyer now wanted another Lm6,000, which Mr Cini could not pay.

Mr Zammit testified that he had heard the magistrate dictate a ruling which he understood to mean that he (the inspector) was to shut up if he did not want to be found in contempt of court and that Dr Azzopardi was found in contempt of court for not appearing before the Magistrates' Court.

In his testimony, the inspector had explained that the magistrate was very angry.

The inspector also declared that the copy of the article which had appeared in The Times effectively reflected what had happened during the sitting.

However, the first court had dismissed the pleas by The Times in the libel suit as it had concluded that the article published on June 21, 1995 did not reflect what had happened in the sitting before the Magistrates' Court because Dr Azzopardi had not been found in contempt of court.

The first court had remarked that the journalist should have checked the facts with the records of the proceedings before rushing to print, for the report had damaged Dr Azzopardi's reputation.

Following the constitutional application filed by Mr Aquilina, Dr Bencini and Ms Spiteri, Mr Justice Micallef said that the right to freedom of expression was a basic one but that it was a right that was subject to certain limitations as it affected other persons.

The European Convention of Human Rights did not, the court noted, guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern. The exercise of this right carried with it duties and responsibilities that were also applicable to the press. While journalists were safeguarded in relation to reporting on issues of general interest, they were also subject to the provision that they were acting in good faith in order to provide accurate and reliable information in accordance with journalistic ethics.

Quoting from judgments of the European Court of Human Rights, Mr Justice Micallef declared that where a court viewed a published statement as not being seriously made, and in particular if published without proper research and investigation or with an improper motive, then the court would not wish to protect what it viewed as bad journalism. It was up to journalists to establish their facts in advance.

The court then examined the submission made by Mr Aquilina, Dr Bencini and Ms Spiteri that the published report was covered by privilege, as it was a report of what took place in criminal proceedings open to the public.

This privilege was not an absolute one, for it was only acquired if a published report of court proceedings was an accurate one. The Times claimed that its report had been accurate for it was a report of what had actually happened in the court room.

Mr Justice Micallef said The Times was basing its constitutional application on the basis of a "fact" that resulted not to be a fact at all.

According to The Times, the article was not libellous and was privileged because it was based upon the fact that Dr Azzopardi had been found to be in contempt of court. But both the first court hearing the libel suit and the Court of Appeal had concluded that this was not the case.

No evidence had been produced in the course of the constitutional proceedings to show that Dr Azzopardi had indeed been found to be in contempt of court.

If Mr Aquilina, Dr Bencini and Ms Spiteri were so sure of the fact that Dr Azzopardi had been found to be in contempt of court, why had The Times published a denial of this fact less than 24 hours later, the court asked.

In conclusion, Mr Justice Micallef found that the judgments in the libel suits had not violated the fundamental human rights of Mr Aquilina, Dr Bencini or of Ms Spiteri.