Bloggers and their sources
On March 17, Magistrate Francesco Depasquale will pronounce whether Daphne Caruana Galizia is obliged to reveal her news sources – at least when she breaks a story, or makes an allegation, on her blog as distinct from her newspaper columns. Should he decide that the law does not offer the protection of confidentiality for blogs and (by extension) the social media, the repercussions will be wide and deep.
None will be untouched – not ordinary citizens, not journalists, not Labour’s reputation, not the judiciary, not even the State as it heads towards assuming the presidency of the EU.
The background in case you missed it: some time ago, Caruana Galizia alleged that the Health and Energy Minister Konrad Mizzi was seen in an intimate embrace with one of his staffers, Lindsey Gambin. If true, the story is news of evident public interest because ministers – not eveneligible bachelors – should not haveoffice affairs, with their disruptive effects on good administration.
Mizzi and Gambin are denying the allegations and have sued Caruana Galizia. Mizzi’s lawyer has demanded to know who the source of the story is, saying that Caruana Galizia’s blog does not enjoy the law’s protection of the confidentiality of sources.
The basis of that claim is twofold. First, the Press Act covers only newspapers and broadcasting. Second, it demands that editors of both media are officially registered. The argument goes that the confidentiality of sources protected by the law covers only registered newspapers and broadcasters.
In fact, Caruana Galizia couldn’t register her blog or herself as its editor – as, in fact, she once tried – because the law doesn’t mention blogs or websites.
The argument by Mizzi’s lawyer, Pawlu Lia, is that Caruana Galizia’s blog is not a news website because it’s a site she uses to write about people. Presumably he meant gossip. Even so, his distinction would rule out a large swathe of European print and online publications – like the German magazine Stern, the British redtops and the magazine Private Eye – which are based on the formula of combining gossip with breaking news and a strong political editorial line.
Hence why Magistrate Depasquale’s decision will have broad implications. If the magistrate rules that Pawlu Lia’s interpretation of the law is correct, the court would have accepted a definition of a ‘news website’ that rules out anentire genre of European journalism from being able to protect the confidentialityof sources.
The implications for journalism will be retrograde, sinister, and absurd.
It will be retrograde because it will reverse the tendency in press freedoms both in Malta and abroad.
Here, the law enshrined the confidentiality of sources in 1996. Confidentiality was already established journalistic practice, however, and no court case prior to 1996 obliged an editor to divulge a source. (In one case, a magistrate did come close but then backed off.)
In other words, the 1996 law did not grant a right; it recognised an existing one to protect it further. To use this law to strip a journalist of the same right is perverse.
Case law abroad – in the US, Canada and the UK, for example – does show a continuing discussion, in the last five years, concerning whether bloggers can be considered journalists. In all cases, however, the issue is not about denying bloggers rights but about whether they should enjoy further protection in libel suits.
The implications, should the court decide that Caruana Galizia is not protected by the law, will also be sinister. The authorities will now have the power to decide – on the basis of a vague distinction – what qualifies as real news. Websites that are deemed not to qualify will not be able to protect the identity of their sources – and will thus not be able to conduct proper investigative stories because no one will come forward.
The first victim will be Caruana Galizia because suddenly all her sources, for all the news stories she’s broken over the years, become vulnerable. All her past news stories can be unpicked and her sources hunted. Her blog will have no future as a news outlet.
But the legal uncertainty will also haunt most journalists. The law has not kept up with journalistic practice. It is still based on a neat distinction between the print and broadcast media, with online publishing and the social media not even mentioned.
Yet most journalists today work in a trade where the lines are blurred. The same journalist might record a story straight to camera, then write it up and upload it, while using the social media to comment further.
Meanwhile, there is a marked tendency in many organisations to broaden their appeal – in a difficult market – by carrying more gossipy items.
Under these conditions, how would journalists be sure that an insufficiently guarded comment on Twitter does not expose them to a court demand to expose their source, since Twitter isn’t covered by the law as a journalistic outlet? The uncertainty itself would constrain press freedoms.
Which brings us to the absurd. If it’s registration in accordance with the Press Act that determines legal protection, does this mean that any website or blog registered abroad, which comments on a Maltese government, can be made to cough up its sources? If not, does it mean that all Caruana Galizia has to do is register her website abroad – and no adversarial lawyer could ever again demand that she reveal her sources? Would this be what our Press Act amounts to saying – that we’re safer in another jurisdiction?
Actually, the Press Act states that decisions taken on the basis of the law need to keep in mind the intimate relationship between press freedoms and democracy. There can be no doubt that if the court orders Caruana Galizia to reveal her source, the case will be noted by organisations set up to monitor press freedoms and human rights.
It will certainly be noted in Europe. Caruana Galizia has vowed she will go to jail rather than reveal her source. Should that happen, mainland Europe will begin to bracket us with Turkey, Poland and Hungary, where press and other freedoms are slipping.
Questions will be raised about Malta’s judiciary but, above all, about Malta’s Presidency of the EU. All these years waiting to put our burning regional issues on Europe’s agenda… only for them to be sidelined by Europeans asking basic questions about our democracy. And you know what? They’ll be right to do so.