The government’s draft Bill updating the law governing the media and defamation (MADA) has been heavily criticised. Even so, you could say the critics have pulled their punches.
They have focused almost exclusively on those aspects of MADA which are objectionable in principle. They have said next to nothing, so far, about what makes the Bill’s most notorious feature – the compulsory registration of websites offering a ‘news-related’ service – unworkable as law.
Meaning it can’t work on its own, as law should, without inviting lawsuits claiming unwarranted discrimination. It will subvert itself, as law, because its functioning will depend on the discretion of politicians, not the courts – unless registration is required of a very wide range of websites, way beyond what is customarily considered to be journalism.
To see why is easy. The Bill has an internal inconsistency when it comes to the criteria of registration and licensing. The inconsistency isn’t accidental. And it has wide ramifications for the entire Bill.
The old requirement of licensing (TV and radio) and registration (newspapers and magazines) is based on the medium, irrespective of content. Whether the content is political or apolitical, serious or entirely frivolous, you still need to be licensed or registered. No grey areas can possibly arise.
The new requirement will include websites to be registered. Now, however, the criterion is not based on the medium (all websites). It’s based on content: “any web-based news service or other web-based service related to news or current affairs” (and “that operates from Malta or in respect of which editorial decisions are taken in Malta”). Here, grey areas and fuzzy boundaries will be legion.
Obviously we know what the Muscat government is trying to catch in its net: websites breaking news, and commenting about news, concerning politicians and their friends. Right now, that’s a category of one – Daphne Caruana Galizia’s Running Commentary – but we might seeothers in the future.
Yet, this is a law we’re talking about. What the government means is neither here nor there. What matters is what the law says. And “news or current affairs” actually means a wide range of things. The weather report is news. The social and personal listings are news. Indeed, this newspaper’s website classifies ‘social and personal’ in the ‘news’ menu, which also carries ‘education’, ‘environment’ and ‘odd news’ (“Boy, 12, nicknamed ‘chicken whisperer’ sets up poultry club”).
The University of Malta website is full of news – with its constant updates concerning awards, papers, discoveries, and debates on matters of public concern. So is the website of the accounting or law firm that, as part of its service, includes legal, political, economic and policy updates that it feels are relevant for its clients.
For that matter, it isn’t clear that ‘news-related’ doesn’t also, legally speaking, cover personal blogs and web-based pages – the kind that detail the daily epic struggles with body weight, traffic, bureaucracy, inflation and insane bosses, with the same two or three readers who are always there to say how inspiring and hilarious the blogging hero is. Will our intrepid hero now need to avoid commenting on announcements made by the ministers of transport and of simplification of bureaucracy... if registration is to be avoided?
I repeat: knowing what the government means is irrelevant. It’s what the text says that matters. And ‘news’ is a word whose meaning is difficult to control, since it means any noteworthy information that is new to whoever is hearing or reading it.
You’d think a government proposing such a law – illiberal in principle and unworkable in practice – cannot be serious. But it is
It can’t be restricted to a field, like ‘politics’, because the personal can be political (or economic). Besides, MADA itself includes private life in its purview.
The problem here goes deeper than careless wording. It’s an intractable problem because the government is trying to apply a law designed to control corporate entities – the traditional media, which only few can afford to own – to websites, which any individual can have.
If the government demands the registration of all websites, the repressiveness of the law becomes apparent to everyone. It tries to disguise this by seeming to restrict it to ‘news’. But then it comes up against the problem that ‘news’ is ‘noteworthy information’ – and most if not all websites carry information that’s noteworthy to someone.
What if the government – or its Media Registrar – promises to take a ‘practical’ or ‘commonsense’ approach to demands for registration? That would mean that the transparent, rules-based approach would be ditched in favour of pleading for ‘understanding’ from the authorities.
We know what that means. You’re in line with the law until the authorities say you’re not. It’s a recipe for arbitrariness. That’s not where dictatorship begins. It is the heart of dictatorship.
Some websites will exercise self-censorship to make sure they remain well within the line of those that don’t need registration. And, from a government that has racked up a record number of information requests from entities like Facebook, you cannot exclude that the law itself will not be used to legitimise further State surveillance. You know, to make sure the law is being respected.
The only reason we might not get there is if the law collapses under the weight of the litigation it generates – with websites that are forced to register claiming discrimination by pointing at other ‘news-providers’ that aren’t.
These consequences – the ‘chilling effect’ on the media – have already been pointed out by critics who have underlined those aspects of the Bill that are objectionable on principled grounds. A registration of websites implies the possibility of not being registered – with the consequence that one’s journalistic sources suddenly become unprotected at law.
No wonder website registration is associated with the authoritarian regimes of Russia, Turkey, China and Saudi Arabia. The comparison isn’t strained. The government proposing this new law for Malta – in the name of keeping the public ‘informed’ – is the same one that has made the Freedom of Information Act a virtual dead letter.
It’s the same one whose ministers have evaded questions on the Panama Papers and accused journalists – including the international press – of fake news and complicity in character assassination. This government, so free with the ‘fake news’ accusation, will be judging whether someone is a true or fake web-based journalist before granting registration.
And it’s the same government that wants a registration of websites in the name of law and order, while it ignores the current law governing legitimate billboards and stands accused of discriminating in favour of those that are illegal (but possibly friendly).
It’s a government whose relationship to freedom of information and expression already is one of bad faith. But it’s proposing a law that vests increased powers in a government minister.
It’s a law where the protection of news sources will depend on registration by a government-appointed Media Registrar – when this government is notorious for its crony appointments.
The chilling effect will not just be on journalists. It will also be on potential sources, who might just decide that talking to certain journalists is unsafe.
You’d think a government proposing such a law – illiberal in principle and unworkable in practice – cannot be serious. But it is. It seems to think its future depends on it.
ranierfsadni@europe.com