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A media law volte-face

I always lectured students that we had abolished press censorship in Malta in 1839, through Ordinance No. IV. But now I need to update my lecture notes as the government, prior to last Friday, was dead set on reintroducing it, at least in so far as the new media are concerned.

The Media and Defamation Bill (hereinafter ‘the Bill’), purports to take us back to the time prior to the advent of the British in Malta when, under the Order of St John, censorship was the rule of the day and press freedom very much still an unknown phenomenon.

It is a pity the government has had the illiberal audacity to propose to Parliament the enactment of a law the hallmarks whereof do not reflect the standards of a democratic society which cherishes not only freedom of the press but also protects accused persons from being punished under old laws which are to be repealed, and which is out of sync with the latest acquired rights in the realm of the new media.

Diverse are the factors in the Bill which make it unacceptable in a democratic society based on the respect of fundamental rights and freedoms as enunciated in the Constitution, the European Convention Act and other laws.

Article 1(1) of the Constitution – the very first provision of the supreme law of Malta – clearly and unequivocally states that: “Malta is a democratic republic founded on work and on respect for the fundamental rights and freedoms of the individual.”

As though that was not enough, the Constitution directs Parliament to enacted legislation with full respect for human rights:

“Parliament may make laws for the peace, order and good government of Malta in conformity with full respect for human rights, generally accepted principles of international law and Malta’s international and regional obligations in particular those assumed by the treaty of accession to the European Union signed in Athens on the 16th April, 2003.”

The Bill clearly and emphatically ignores the Constitution as though the latter was totally inexistent even though the same Constitution provides in article 6 that it is supreme law: “...If any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.”

Government announced that it will be retracting some of the Bill’s provisions which constitute an embarrassment to Malta

The Bill runs also roughshod over the provisions of the Criminal Code which, since 1855, enshrines the lex mitior principle. The Code’s article 27, entirely unknown to and largely ignored by the Bill, provides that: “If the punishment provided by the law in force at the time of the trial is different from that provided by the law in force at the time when the offence was committed, the less severe kind of punishment shall be awarded.” Since 2009, this principle has also been enunciated by the European Court of Human Rights.

As though this was not enough to render the Bill further regressive than it already is, it is unconstitutional as it fails to comply with the direction given to Parliament in article 65(1) of the Constitution for a number of reasons.

■ It fails to acknowledge the lex mitior principle (the retrospectiveness of the more lenient criminal law), recognised both by the Criminal Code since 1855 and the Strasbourg Court since 2009, thereby disgracefully turning the clock backward to pre-1855 colonial times.

■ It affords different treatment to persons accused of a criminal offence under the now-to-be repealed Press Act and the Criminal Code, on the one hand, and the Bill, on the other, as new criminal defamatory libels will no longer be prosecuted while pending ones will continue to be so. It also smacks of discrimination as it affords different treatment to persons who are very much in the same situation.

■ It limits freedom of expression only to journalists in the employ of the traditional media houses and excludes other persons – such as bloggers – from exercising their freedom of expression. This unjustifiable restriction in a pluralistic democratic society is both in breach of the Strasbourg Court’s established case law and that of domestic courts (see the learned judgments delivered by Magistrate Francesco Depasquale which the Bill unashamedly professes its ignorance thereof), apart from being completely out of tune with how media law has evolved locally and internationally in today’s technological world.

■ It maintains in force media gagging through recourse to the precautionary warrant of prohibitory injunction, for while the precautionary garnishee order is due to be repealed, the media will still continue to be powerless when precautionary warrants of prohibitory injunctions are served thereupon, rendering the removal of the garnishee order both a half-baked and a knee-jerk measure which misses the wood for the trees.

■ Is disproportionate when it requires practically anybody who owns a computer, a mobile phone, a tablet or some other communication technology equipment in Malta to register with the Media Registrar once, being an editor of a website that covers both a news service and “other web-based service relating to news or current affairs” and “news and current affairs”, though undefined, can be given an extensive definition to include all forms of news – cultural, educational, environmental, sports, etc.

■ It inexplicably fails to address several media law issues which have been crying out loudly for regulation and which are by far more important to the governance of the State such as: the partisan composition of the Broadcasting Authority, the divisiveness and hatred which journalists-cum-propagandists employed by the political parties’ media sow in our society; reviewing Maltese law to remove impediments which restrict journalists from acting successfully as watchdogs of society; strengthening the protection of journalistic sources; a more uniform regulation of the right of reply (which today is exercised under the Constitution, the Press Act and the Broadcasting Act);

Prohibition of trial by the media so as not to prejudice an accused’s presumption of innocence and the right to a fair trial; better regulation of the right to a public trial while ensuring that all judgments are given in open court even if, for legitimate reasons, the identity of the parties or any party thereto or any witnesses is not disclosed;

That the Public Broadcasting Services is licensed by the broadcasting regulator and not by government, which regulates media literacy, brings the law on political advertising in line with the judgments of the Strasbourg Court, codifies all the various laws related to the media in one law (one asks: why does the Bill not regulate broadcasting and consolidates both the Press Act and the Broadcasting Act into one law?); and that unjustifiable restrictions in the freedom of information law are removed, etc.

The government has now announced that it will be retracting some of the Bill’s provisions which constitute an embarrassment to Malta as they portray us as an undemocratic, uncivilised, regressive and repressive State. The revised Bill-to-be will not contain a requirement for website registration; the limited protection in the Bill of journalistic sources will be extended to all journalists; registration of traditional media will become voluntary; courts will be given the power to lower damages for libel; and, we were told, the clause on the abolition of criminal libel will be revised and brought in line with human rights law.

These are indeed drastic changes to the Bill which were provoked by civil society and its clamour against the undemocratic provisions in the Bill.

Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta.

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