Every so often it is the sad duty of impartial academics to speak the inconvenient truth. My conscience does not permit me to keep silent in the face of the government’s publication of the proposed Media and Defamation Act (Mada).
While, at this stage, I write in my personal capacity, and not formally as UN special rapporteur on privacy, it is important to remind readers of the provisions of article 12 of the UN Declaration on Human Rights which I am tasked with promoting and protecting: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
European law has similar principles. It is good that the government of Malta wishes to update the law and make it suitable for the internet age. Especially so, since some of the research carried out by or in partnership with the Department of Information Policy and Governance at the University of Malta suggests that individual citizens are genuinely concerned by attacks on their reputation on the internet.
In an internet without borders, it would appear that citizens would like their privacy and reputation to have safeguards which are also without borders and when these rights are breached citizens would like to have access to speedy remedies which go across borders.
The problem is that the government is, in some important aspects, proposing to do the wrong thing. What Maltese – and other – citizens need is a fast, affordable way to declare online content defamatory, to have it taken down quickly and to have any damages awarded to be adjudicated speedily. Did the government carefully devise a fast, cheap online solution for online problems? No. Instead, it makes worse a system which is already much too slow, it makes more cumbersome a process which can already easily last some five to10 years or more, thus further overloading our conventional law courts.
The government is thus currently losing out on a golden opportunity to take a leadership position during its EU presidency and create a relatively cheap, national or Europe-wide centre for online dispute resolution in the area of defamatory content on the internet.
This is something that could be undertaken in collaboration with the Malta Centre for Arbitration or possibly in partnership with the EU-entrusted Czech Court for Arbitration. Such a course of action would require a clear long-term vision and international credibility but instead the current proposals smack of being an ill thought-out, hasty, knee-jerk reaction to a constant irritant.
There are far too many other flaws in Mada for me to address comprehensively in this short piece so I will stick to some salient features. Mada is bad because it contains unnecessary restrictions on the fundamental right of freedom of expression. It is bad because it ignores whole swathes of European human rights law and the recommendations of the UN Special Rapporteur for Freedom of Expression.
It is mad because it is a totally unnecessary, unmitigated national and international PR disaster at a time when Malta should be engaged in a full-scale damage limitation exercise.
As somebody whose UN role brings me in constant contact with different people in human rights and diplomatic circles around the world, I can confirm that there is international attention focused on, say, Malta’s involvement in the Panama Papers or recent attempts by a minister of government to intimidate journalists like Daphne Caruana Galizia through precautionary warrants.
The government did not need to add to a list of indefensible actions and positions by going the way of some undemocratic governments as it has with some of the provisions of Mada.
Extending the registration requirement of the Press Act to the internet sphere as Mada proposes is inappropriate and unnecessary. It has already been the subject of more detailed criticism by the Malta IT Lawyers Association but at this stage all that one needs to point out is that it is an unnecessary measure, especially given that our courts have already extended the notion of journalist to cover persons exercising their profession by writing on websites.
As clearly shown by many libel actions, including the one against Caruana Galiza decided in her favour this week, one does not need a website to be registered in order that a libel action be taken and decided within the Maltese courts. Which begs the question as to what is the true purpose of such a measure.
Moreover, registration does not prima facie meet the tests of proportionality and necessity as required under the case law of the European Court of Human Rights. Taken together with other measures, the registration requirement could have a chilling effect on journalism and free speech which I have no hesitation in condemning.
Just as important are the things Mada omits. For example, it should be pointed out that Mada does not address the vital issue of anonymity on the Internet which is recognised as a fundamental right in both US and Canadian case law and for which European law also requires protection.
EFF usefully sums up anonymity issues as follows: “Many people don’t want the things they say online to be connected with their offline identities. They may be concerned about political or economic retribution, harassment, or even threats to their lives.
“Whistleblowers report news that companies and governments would prefer to suppress; human rights workers struggle against repressive governments; parents try to create a safe way for children to explore; victims of domestic violence attempt to rebuild their lives where abusers cannot follow. Instead of using their true names to communicate, these people choose to speak using pseudonyms or anonymously.
“For these individuals and the organisations that support them, secure anonymity is critical. It may literally save lives.”
These considerations are important since, as the US Supreme Court has recognised, the internet offers a new and powerful forum, and “protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views”.
I encourage colleagues, the public and policymakers to engage in a proper debate about the importance of the profession of journalism as well as to the way that the internet changes some dimensions of the manner that we treat publishing where everybody and anybody may have the same reach – but not the same training and institutional checks and balances – as a professional journalist. Mada does not satisfactorily address this.
Ministers have the opportunity to press the reset button and start all over again, stepping back from unnecessary, largely ineffective measures which can only earn them infamy and international disrepute. In drafting Mada they either obtained flawed advice or else chose to disregard principled advice. This time round, feel free to take up this open invitation to consult with non-partisan experts.
Joe Cannataci is head of the Department of Information Policy and Governance at the University of Malta, holds the chair for European Information Policy and Technology Law at the University of Groningen and is the UN’s first-ever special rapporteur for the right to privacy.