Plans are under way to boost freedom of expression by making it more difficult for the police to prosecute artists.
Sometimes, the problem is not the law itself but the way the law is interpreted or applied
The move is a direct response to the Realtà case two years ago, when a student and a writer were charged – and later acquitted – over an explicit short story published in a student newspaper.
A working group set up by Culture Minister Mario de Marco has compiled seven proposals aimed at discouraging self-censorship and apathy within the artistic community.
This follows the government’s announcement six months ago to end film and theatre censorship by putting the onus on producers to classify their own productions. It was done in response to the controversial ban of the play Stitching.
But while theatre censorship required a change in the law, police “overzealousness” demanded a change in procedure, according to Dr de Marco.
“Sometimes, the problem is not the law itself but the way the law is interpreted or applied,” he said, stressing the important role of artists in challenging the status quo.
Dr de Marco was speaking during a discussion, chaired by former European Court of Human Rights judge Giovanni Bonnello, where interested parties were given an overview of the working group’s proposals.
Judge Bonello explained that the right to freedom of expression could never be absolute but European case law was increasingly favouring artists.
In Malta, the courts have also ruled consistently in favour of freedom of artistic expression, showing that “the system is working” and the problem is not with the law but the prosecution.
According to draft proposals, which are still open to consultation, criminal libel will be removed from the law books, meaning police will no longer be involved. Libel cases will all be relegated to the civil court.
Judge Bonello said it was important that the police were no longer responsible for “policing thoughts and words”.
Moreover, before prosecuting an artist over an obscene work, the police will now have to consult the Attorney General and a specialised board that would have an adequate understanding of art.
The government will also spearhead an information campaign to help the public understand their rights and obligations according to European case law on freedom of expression.
There will be a set of guidelines, based on the Crown Prosecution Services’ legal guidelines on obscene publications, to empower artists to work within the framework of the law.
For a case to be considered obscene, the publication or artwork would have to fulfil all three criteria of the “Miller test”, which derives its name from a 1973 US court case.
Obscene works must appeal to the prurient interest of average people living in a contemporary community, must depict in a patently offensive way sexual conduct and must lack serious literary, artistic, political or scientific value.
The judiciary is also expected to use the “Miller test” in court cases.
The working group also suggested a thorough revision of Malta’s laws on expression, an initiative that would delve into complex issues of blasphemy and defamation.
Lawyer and publisher Chris Gruppetta said the proposals were aimed at ensuring more consistency because it did not make sense to prosecute over the Realtà story while allowing an erotic book like bestseller Fifty Shades of Grey to be sold openly.
Nor did it make sense to charge a DJ for juxtaposing images of the Pope with pictures of a naked woman but to allow an exhibition where chocolate moulds of Jesus can be eaten by the audience, he said.
Dr de Marco acknowledged that the law could not please everyone but said the changes were aimed at striking the right balance.
He said it was important for there to be “filters” to prevent rash decisions by the police that fuelled self-censorship because freedom of artistic expression contributed to the public’s maturity.
Feedback on the proposals can be sent to classification.mtce@gov.mt by August 10, after which the changes will be finalised and implemented.