The Times takes defamation ruling case to European Court of Human Rights

The Times has filed an application asking the European Court of Human Rights to declare that a series of judgements delivered by the Maltese courts were in breach of the paper's freedom of expression and had "far-reaching and very dramatic effects" on journalism.

The case was filed against Malta by former editor Victor Aquilina, former court journalist Sharon Spiteri and Austin Bencini, who was registered as the newspaper's printer.

The case dated back to June 20, 1995, when lawyer Tonio Azzopardi was acting as defence counsel in criminal proceedings against a man charged with bigamy before the Magistrates' Court. Dr Azzopardi failed to immediately appear before that court to deliver his final submissions, as had been scheduled. Tensions arose when Dr Azzopardi failed to turn up after he was called several times throughout the morning's sitting and the presiding magistrate repeatedly declared his intention in open court to find the lawyer in contempt of court.

Ms Spiteri, who was reporting the bigamy case, heard the magistrate find Dr Azzopardi guilty of contempt of court. She tried to verify what she had heard with the records of the case but did not manage because the court deputy registrar and the presiding magistrate had left the chambers. She then confirmed the fact with another reporter working for another newspaper who was present during the case.

On June 21, 1995, the paper published a report entitled Lawyer Found In Contempt Of Court, referring to Dr Azzopardi. That day, the lawyer called Ms Spiteri and insisted upon the publication of a withdrawal.

It transpired that the fact that the court had found Dr Azzopardi guilty of contempt was not registered in the record of the proceeding and, the next day, The Times carried a report entitled Lawyer Not Found In Contempt Of Court.

Nonetheless, Dr Azzopardi filed civil proceedings for defamation under the Press Act and, during the proceedings, the First Hall of the Civil Court heard the prosecuting officer in the bigamy case confirm what Ms Spiteri had heard.

However, on November 5, 1999, the First Hall of the Civil Court found that the article which appeared on The Times on June 21 was defamatory and ordered the paper to pay Dr Azzopardi Lm300 in damages.

The paper appealed the judgment, which was, however, confirmed by the Court of Appeal on June 27, 2003. In May 2004, an application was filed before the First Hall Civil Court in its constitutional jurisdiction claiming that both judgments violated the right to freedom of expression. This application was turned down and The Times took its case to the Constitutional Court, which rejected its appeal last January 16.

After exhausting all domestic remedies The Times has now resorted to the European Court of Human Rights where it is insisting that the judgments delivered by the courts in Malta were in breach of its right of freedom of expression.

The Times submitted that the fact that Ms Spiteri actually heard the presiding magistrate find Dr Azzopardi guilty of contempt of court gave the paper the right to publish this fact. Any measure against them for exercising this right constituted an interference in the freedom of expression.

It appeared that the applicants were condemned because of the fact that it was not recorded in the records of the case that Dr Azzopardi was found guilty of contempt.

The Times submitted that "...if journalists were made to check the records of the proceedings before publication and restrict their reports limitedly to the content of the records of the case, otherwise they would be condemned for reporting 'non-facts', this, in itself, constitutes an interference in the freedom of expression... This is even more so in view of the fact that, with respect to criminal proceedings, at least in practice, the records of the case are not, as a rule, available to reporters".

The paper argued that, when it transpired that the fact that Dr Azzopardi was found in contempt was not reflected in the records, the applicants were "as quick as they could be" to publish the minutes of the hearing under the title Lawyer Not Found In Contempt Of Court.

The publication of the June 21 and 22, 1995 reports gave a clear and honest indication of how the events unfolded. The second publication was a continuation of the first in order that readers could appreciate what happened in fact: namely that verbally Dr Azzopardi was found guilty of contempt of court but this was not reflected in the records of the proceedings.

"Yet, rather than commending this journalism, which clearly evidences a high level of responsibility, professionalism and good faith, the courts of Malta in the libel proceedings instituted by Dr Azzopardi against applicants condemned them to pay him a sum of money under the Press Act," The Times complained.

The Constitutional Court "applied a further twist to the dagger" when it expected Ms Spiteri and Mr Aquilina to question whether a person could legally be found guilty in contempt of court in that person's absence. The court also implied that the journalist was not "serious" for failing to do so.

"Applicants are seeking redress before this court in this case because the judgments issued so far by the courts in Malta have far-reaching and very dramatic effects. Until now, court (and others such as parliamentary) reporters report what they hear and see at times in very fierce, tense and perhaps even very emotional circumstances. If any new relevant facts emerge after they publish, they publish such new facts.

"This is what responsible and good faith journalism is all about. Indeed, it is humbly and respectfully submitted that the requirement that reporters... are to be expected not to report until the reporter has sight of the records of the proceedings or of the minutes of the sitting or the relative debates, particularly because there might have been considerable commotion during the proceedings; and/or the requirement that reporters are to limit their publication to what is recorded in the records/minutes of the proceedings; and/or the requirement that such reporters are to be expected to be experts on what they are reporting in order to qualify as 'serious' journalists publishing only what is legally correct, constitute interference in the exercise and enjoyment of the right to freedom of expression."

Lawyer Stefan Frendo is representing The Times.