Occasionally, I feel the urge to revisit some article I would have penned years ago due to renewed interest in the subject. A few years back, while debating amendments to the Press Act in Parliament, I had written an article which I have revisited and updated.

… a libel suit should be regarded as a serious matter…- José Herrera

The freedom of the press has, over the years, been the subject of various debates in Malta. By the late 19th century, however, even though with certain restrictions, this right was practically guaranteed. In fact, the first ordinance ever promulgated regarding the freedom of the press was issued by the colonial authorities in 1836. This automatically led the way for the publication of the first Maltese political newspapers. The first Maltese journal with a political tinge was Il-Portofolio, first issued in 1838 and remained in print till 1902. This was followed by at least 20 others, which include Malta Times (1840-1904), the Daily Malta Chronicle and Garrison Gazette, first issued on November 14, 1884 and ran till June 1940, and, finally, the Mument, which was first issued in 1972.

It was felt that a balance had to be struck between the fundamental principle of having a free and independent press and the rights of individuals to be protected against slander and libel. In this regard, it is worth referring to the magna opera of one of Malta’s most imminent judges, Paolo Debono, Storia Della Legislazione.

Judge Debono states that the liberty of conscience does not mean insulting anybody who does not agree with you.

He even reminds us of the saying of a great Frenchman namely: Le droit de tout dire n’existe pas plus que le droit de tout faire, which means that you can no more say whatever you like than do whatever you like. He concludes by stating that any honest journalist should welcome certain limited restrictions on the licence of the press.

In part 2 of the Press Act, that is Chapter 248 of the Laws of Malta, we have the offence of defamatory libel, an offence originally punishable for a term of up to three months’ imprisonment.

In analysing jurisprudence, we will find that rare and remote were the instances when the courts imposed prison terms in such instances. During the last 45 years there has not been one single instance.

Of course, times change and we have to change with them. The political realities and exigencies of the times of Judge Debono, that is, the early 20th century, were evidently not what they are today and, perhaps, today guaranteeing the absolute freedom of the press has become more sacrosanct. It was in this light that the relative law was finally amended by removing the possibility of a prison term in defamatory libel.

The debate continued on and we have reached a point where there is a strong feeling that the last vestiges of criminal libel should also be repealed.

However, in this regard we definitely have to act prudently and with great caution. No one is denying the inalienable rights pertaining to free journalism because this could be regarded as the cornerstone of democracy.

At the same time, however, in our rush to portray ourselves as liberal and democratic we must not completely sideline the inherent rights of individuals from being unduly harassed and maliciously libelled. Elsewhere, even in the most free and democratic countries, libel is considered as a very serious matter indeed, giving rise to both civil and criminal actions. Damages in such suits can even run into millions of euros.

Malta is a very small country and what is important here is to affirm a sense of proportionality. I have no reservations against removing the penal aspect of libel. Nonetheless, I feel that the maximum amount of damages that can potentially be awarded should increase to make them more realistic and serve as a deterrent against abuse. Such increases, however, should be prudent so as not to stultify the freedom of the press.

Rightly or wrongly, in Malta, such cases are no longer treated as serious issues, in the sense that the maximum amount of damages to be awarded falls within the competence of the inferior courts and, as such, are treated in a summary fashion.

When the law raising the competence of the inferior courts was being piloted in Parliament, I had taken the liberty of making certain recommendations.

I had stated that, to my mind, a libel suit should be regarded as a serious matter and should, therefore, be tried solemnly by the superior courts. In this respect, I had recommended a symbolic increase of €2.3 to the maximum amount of damages, thereby keeping such cases within the exclusive jurisdiction of the superior courts, which has been the case since time immemorial.

As of late, it has become the custom for the powers that be to assign all libel cases to pre-selected members of the judiciary. I am adverse to this given the sensitivity and political connotations of the majority of libel suits.

Strengthening the freedom of the press is a laudable aspiration, however, what I have been trying to state is that the title to this article should always be regarded as a misnomer.

Dr Herrera is the shadow minister for justice.

Sign up to our free newsletters

Get the best updates straight to your inbox:
Please select at least one mailing list.

You can unsubscribe at any time by clicking the link in the footer of our emails. We use Mailchimp as our marketing platform. By subscribing, you acknowledge that your information will be transferred to Mailchimp for processing.