In a landmark judgment, Europe’s highest court has found this newspaper’s right to freedom of expression was violated when the Maltese courts found it guilty of defamation after dismissing the evidence of eye witnesses. Maltese courts had found against The Times four times, in the original case, the appeal, a Constitutional case and its appeal, before these rulings were overturned by the European Court of Human Rights, yesterday.
The libel proceedings, filed against former The Times editor Victor Aquilina, journalist Sharon Spiteri and printer Austin Bencini, were started by lawyer Tonio Azzopardi over a report in this newspaper on a court case in which he was representing the defendant.
The report said the magistrate found Dr Azzopardi in contempt of court after he failed to attend a sitting. The journalist had heard the magistrate make the statement in open court but it was not listed in the minutes of the court proceedings.
The Maltese courts had found the newspaper guilty of libel because the official records made no reference to Dr Azzopardi being found in contempt of court and the judgment was confirmed on appeal and also by the Constitutional court.
However, in its unanimous judgment the European court yesterday said all the evidence heard, apart from the court record, “clearly suggested that Dr Azzopardi had been found to be in contempt of court”.
It noted that records of proceedings were usually brief minutes of what went on in the court room and as, acknowledged by the Maltese courts, they did not contain a detailed record of all that took place.
In defence of a journalist’s right to reproduce facts other than those reported in official court records, the European Court said that records could not be considered “the sole source of truth”.
In a scathing remark, the European Court said: “To limit court reporting to facts reproduced in the records of proceedings, and to bar reports based on what a journalist has heard and seen with his or her own eyes and ears, as corroborated by others, would be an unacceptable restriction of freedom of expression and the free flow of information.”
The European Court was also critical of the fact that evidence produced by independent eye witnesses, including a prosecuting police officer, was given “little or no attention” by the Maltese civil court during the libel proceedings.
The police officer had declared under oath that the copy of the article that had appeared in The Times effectively reflected what had happened during the sitting.
There was no indication in the judgment of the Maltese courts, the European Court added, as to whether the police prosecutor was found to be unreliable or unconvincing.
“The Court considers that to require the applicants to prove the truth of the statements made in the article, while at the same time disregarding, or giving no reasons for rejecting, the evidence called by the applicants to establish their truth, is not consistent with the requirements of Article 10 of the Convention,” the European Court said.
It also commended the journalist’s efforts to try and verify her perception of what went on in the court room and said she had acted at all times “in good faith and in accordance with her duty of responsible reporting”.
In fact, Ms Spiteri had tried to check with the magistrate and the deputy registrar after the sitting whether Dr Azzopardi was found in contempt of court but they had already left. However, she confirmed her perception with another journalist present in the court room.
The European Court said that Ms Spiteri could not reasonably have been expected to take any further steps 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”.
“In taking their decisions the domestic courts overstepped their margin of appreciation and the judgments against the applicants and the ensuing award of damages were disproportionate to the legitimate aim pursued,” the European Court said, finding a violation of this newspaper’s fundamental human right to freedom of expression.
Reacting to the judgment, former editor Victor Aquilina said he was “very happy” that the European Court had justified the newspaper’s claim.
“We have insisted throughout the hearing of the case that the people have a right to know what happens in a court of law,” he said, noting the European Court’s observation that facts could not be limited to reproducing records of proceedings.
He also expressed appreciation for the court journalist who reported the case: “I am particularly happy for Sharon Spiteri. I had absolutely no doubt about her professionalism in the job, and the ECHR has confirmed this.”
The Times was represented by lawyers Stefan Frendo and Austin Bencini.
The case: Court report on bigamy case
The case relates to a court report by Sharon Spiteri that was published on June 21, 1995 with the title Lawyer Found In Contempt Of Court. It referred to a bigamy case in which lawyer Tonio Azzopardi was representing the defendant Olaf Cini in criminal proceedings before Magistrate Silvio Meli.
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 had 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.
Ms Spiteri had reported that the magistrate found Dr Azzopardi in contempt of court for failing to turn up for the sitting. The minutes of the sitting did not record the magistrate’s statement despite the journalist having heard it in open court.
Her version was later on corroborated by Police Inspector Peter Paul Zammit who was the prosecuting officer in the case and who was present in the courtroom at the time. Another witness also corroborated the journalist’s report.
The Times had published an apology after Dr Azzopardi complained but he later opened libel proceedings, which he won. The court had ordered The Times to pay Dr Azzopardi Lm300 (€699).
The Appeals Court and later on the Constitutional court all dismissed the evidence produced by The Times, including the police inspector’s testimony and that of another individual present in the courtroom, insisting that court records did not show the lawyer was found in contempt of court.
The Times eventually took the matter before the European Court of Human Rights. The ECHR unanimously found that the newspaper’s fundamental human right to freedom of expression as protected by Article 10 of the Convention on Human Rights had been violated.
It also ordered the State to pay The Times €4,000 in damages and €4,000 in respect of costs and expenses plus any interest accrueing.
Freedom of expression
Freedom of expression is enshrined in Article 10 of the European Convention of Human Rights. Malta is a party to the convention.
Article 10 states that “everyone has the right to freedom of expression” and this includes freedom “to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”.
Freedom of expression is not absolute. It may be subjected to conditions or restrictions that are “necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.
Freedom of expression is also guaranteed by Article 41 of the Constitution.