The Constitutional Court yesterday dismissed an appeal by The Times from a judgment of the First Hall of the Civil Court.

The appeal was filed by former editor Victor Aquilina, Austin Bencini and journalist Sharon Spiteri against the Attorney General and lawyer Tonio Azzopardi.

The Constitutional Court was composed of Mr Justice Joseph D. Camilleri, Mr Justice Joseph Filletti and Mr Justice Tonio Mallia.

The Times had filed a constitutional application before the First Hall of the Civil Court claiming that its fundamental human right to freedom of expression had been violated by two judgments delivered by the First Hall of the Civil Court and by the Court of Appeal in a libel suit filed against it by Dr Azzopardi.

The case goes back to June 21, 1995 when The Times published a report entitled Lawyer Found In Contempt Of Court with reference to Dr Azzopardi.

Prior to that date Dr Azzopardi had been representing Olaf Cini in criminal proceedings before the Magistrates' Court. 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 made verged on contempt at that stage of the proceedings, ruled it was upholding Mr Cini's request in the circumstances.

The prosecuting officer, Police Inspector Peter Paul Zammit, had thrown more light on the matter in his evidence. He had told the 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 police officer also declared that the copy of the article that had appeared in The Times effectively reflected what had happened during the sitting.

On June 21, 1995, Dr Azzopardi had protested against the report carried in The Times on that day and had insisted upon a correction. On June 22, 1995, The Times had published a correction entitled Lawyer Not Found In Contempt Of Court. Dr Azzopardi filed libel proceedings against Mr Aquilina, Ms Spiteri and Dr Bencini.

In November 1999, the First Hall of the Civil Court had found in favour of Dr Azzopardi and had ordered The Times to pay Dr Azzopardi Lm300 in libel damages.

Mr Aquilina, Ms Spiteri and Dr Bencini then appealed to the Court of Appeal which had, on June 27, 2003, confirmed the first court's judgment.

The Times subsequently filed its constitutional application which was also dismissed by the First Hall of the Civil Court.

On appeal, The Times argued that the first court had been incorrect when it had accepted that journalistic reporting was to be of an absolute standard without taking into consideration the facts of the case.

The Times submitted that when Ms Spiteri was present in the courtroom on June 20, 1995, she had heard the presiding magistrate find Dr Azzopardi to be in contempt of court. Ms Spiteri's version was corroborated by Inspector Zammit.

The fact that the written records of the proceedings did not reflect what the presiding magistrate had said did not affect what both Ms Spiteri and Mr Zammit had heard.

According to The Times, the report published on June 21, 1995 was in good faith and had faithfully reported facts that had occurred in the course of criminal proceedings. The Times was entitled to publish information about these facts. On June 22, 1995, The Times had published the content of the written record of the court proceedings. Thus, The Times had published, over two days, exactly what happened in the courtroom.

In conclusion, Mr Aquilina, Ms Spiteri and Dr Bencini requested the Constitutional Court to overturn the judgment of the First Hall of the Civil Court in its constitutional application and, instead, to find that their fundamental human right of freedom of expression had been violated by the judgments delivered in Dr Azzopardi's libel suit.

The Attorney General pleaded that the judgment of the First Hall of the Civil Court delivered last May was correct and merited confirmation. It was not sufficient for a journalist to report what s/he thought had occurred if the journalist did not limit himself/herself to a simple description of the facts. The fact that the journalist and the prosecutor had formed the same impression was not sufficient.

In any event, a person was either found to be in contempt of court or was not so found. It did not result that the Magistrates' Court had found Dr Azzopardi to be in contempt of court. It was clear, according to the Attorney General, that the journalist had been in error when she had arrived to a conclusion without verifying the facts.

It was true that The Times had carried a clarification to Ms Spiteri's report on the following day but this was insufficient to remedy the big mistake that had previously been committed. The two reports, taken in conjunction, were not a simple report of the facts.

The Attorney General added that Ms Spiteri had reported upon a technical fact that was the finding of contempt of court. This fact was of a delicate nature as an incorrect report could cause damage to the person mentioned. In such cases a journalist ought to check the veracity of such facts before publishing a report.

In yesterday's judgment, the Constitutional Court stated that all matters relating to fact and to law in this case had been well explained by the First Hall of the Civil Court in its constitutional jurisdiction.

This case revolved on what had happened or had not happened on June 20, 1995 during the criminal proceedings against Mr Cini before the Magistrates' Court. The Constitutional Court declared that the records of the court proceedings did not indicate a case of contempt of court. Nor had it resulted that Dr Azzopardi had, in fact, been found guilty of contempt of court. The Times, however, insisted that its reporter had heard the presiding magistrate find Dr Azzopardi guilty. The court added that the reporter had got the impression that she had heard the magistrate pronounce such a decree.

The Times had also pleaded that the privilege accorded to the press in judicial proceedings extended not only to what was contained in the written records of the proceedings but also to what was said in the course of a court case. This argument, the Constitutional Court noted, had been accepted by the first court which had ruled that journalistic privilege applied if the report was connected to court proceedings, if it was a faithful report and if it was in good faith.

Although the Constitutional Court said that it could not examine whether the report complained of satisfied these conditions, the First Hall of the Civil Court and the Court of Appeal, in the course of the libel proceedings filed by Dr Azzopardi, had carried out such an examination.

The Times had been found guilty of libel as it had resulted that the report carried in the newspaper was not a faithful account of what had occurred during the proceedings. The Times had published a report on what its reporter had the impression she had heard. No verification of this impression had been carried out by The Times.

The Constitutional Court declared that while a newspaper was entitled to publish "facts" that it deemed to be of interest, such "facts" had to be correct. If a journalist published a finding as a "fact" then he or she had to be ready to prove the truth of such a fact. If the proof was not forthcoming, then the journalist would be guilty of defamation.

The right of freedom of expression of journalists in relation to reporting on issues of general interest was, the Constitutional Court ruled, subject to the proviso that they were acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism. A newspaper had therefore to publish items that were based on facts and not on impressions. Furthermore, a newspaper had to take sufficient steps to fulfill its obligation to verify the truth of the factual allegation in question.

The Constitutional Court ruled that what had occurred in this case did not constitute serious journalism for the public was entitled to expect that what was published as a "fact" had been the subject of serious journalistic investigation.

In conclusion, the court dismissed The Times' appeal and confirmed the judgment of the First Hall of the Civil Court.

Lawyer Stefan Frendo appeared for The Times.

Lawyer Hubert Theuma acted for the Attorney General.