I don’t think I’ve ever felt more disappointed by journalists and journalism than these past few weeks. I’m referring, of course, to the general outrage provoked by the precautionary warrant slapped on Daphne Caruana Galizia.
The conclusion being drawn in journalistic and other circles is that while ‘journalists’ should not be exempted from libel actions, they should receive immunity from precautionary warrants, particularly when writing about politicians in the ‘public interest’.
Does this mean that a ‘non-journalist’ (or indeed an accredited journalist not playing by the rules) should be spared too? The inference is that any John or Jane Citizen can take to Facebook or the blogosphere and say anything.
Leaving Chris Cardona out of it for the moment, let’s consider a hypothetical scenario that sees Simon Busuttil and Joseph Muscat enjoying ‘quality time’ (not for one moment together). Now dress up that story with a happy ending, an intimate birthmark and some naughtiness and see how that goes.
The Press Act, which is the law regulating defamatory libel in Malta, does not make any distinction between a true journalist and the Johns and Janes of this world. It speaks of ‘whosoever’ and therefore makes anyone subject to the laws of libel: which may mean either that anyone who contravenes that law is (stretching a legal point) a journalist, or that there is no special-case treatment for ‘journalists’ because everyone is equal before the law. Such equality, to my mind, is the most important human right in a democratic society based on the rule of law.
But at this point, the politics of party and faction interpose. I have, you see, a sneaking suspicion that if Glenn Bedingfield had told that porky about Busuttil, he would now be up the proverbial creek without a paddle. He would be labelled delusional and malicious, a traitor to the most-high calling of journalism, the destroyer of morals and family life. His ‘victim’, meanwhile, would occupy the upper moral ground and be nicely placed to slap a garnishee order on the hapless Bedingfield. This would be seen as legitimate prudence, not vindictiveness.
Indeed, whether or not you’re a politician, what can be more unfair or destructive than a malicious libel? How then can it be right for rent arrears or consumer rights to merit greater protection than your own reputation? You can’t possibly put a price-tag on it. But say you win your case and don’t get paid the compensation you’re owed because the other side lacks the funds. Isn’t that a despicable and impotent form of justice?
Caruana Galizia has repeatedly shown she has no ‘journalistic’ qualms publishing uncorroborated gossip and leaping to erroneous conclusions but obviously thinks she is above the law
If we don’t like precautionary warrants because they’re wide open to abuse, and if judges repeatedly make a mockery of Article 836A because, most of the time, it is next to impossible to obtain a prima facie revocation, then let’s do one of four things: (1) remove warrants altogether; (2) amend the law to make it difficult for a warrant to stand if challenged (rather than make it nigh-on impossible to challenge); (3) make it very expensive for someone who issues a vexatious warrant and/or loses his case; (4) make sure such cases are heard expeditiously.
Removing warrants to protect bloggers who have compromised their journalistic standards is simply not on and will not bear scrutiny in a truly democratic society. So let’s cut to the chase: if Bedingfield had been on the receiving end of the warrant and the Prime Minister, in his support, was on the streets crowdfunding and protesting the unconstitutionality of a law that affects thousands of ordinary people, the PN would be putting all their effort into defending the independence of our courts, suddenly seen now as the vital pillar of our democracy. Incidentally, over 1,500 precautionary warrants were filed during the last two years – but who even knew?
Which is why I find the whole thing so appalling: the mass hysteria, the je-suis positions taken, the directionless PN party machine suddenly in overdrive making Caruana Galizia’s cause its own.
You know you’re living in a very selective and phony democracy when an abusive blogger who has repeatedly trampled over the lives of ordinary citizens with impunity, finally meets the long arm of the law, raises hell and instantly receives the support of the journalistic profession she has compromised so direly.
Caruana Galizia has repeatedly shown she has no ‘journalistic’ qualms publishing uncorroborated gossip and leaping to erroneous conclusions but obviously thinks she is above the law. This is the person who has recently been accorded near-sainthood (and huge financial support) by a bankrupt political party with electoral aspirations.
Responsible journalism required Caruana Galizia to corroborate her story before going public. She didn’t do that, and instead takes Cardona to task for reacting the way he did, insisting that he should have invited the press, telephoned her, and accepted that the burden of proof was on his shoulders: i.e. done everything entirely on her terms, and hers alone.
Instead, Cardona decided that enough was enough, and reacted decisively and legally. Caruana Galizia won’t hear of it: if a PL guy won’t volunteer proof, he’s obviously guilty. And how dare he sue her 10 times for 10 separate blogs!
As anyone who has studied the law of evidence knows, proof of a negative fact is impossible. The only way you can prove you were ‘not somewhere’ is to have positive evidence that you were ‘somewhere else’. That’s not always easy. How many times have you been out for an impromptu walk in Malta, let alone a foreign country? Your inability to establish an alibi doesn’t make you automatically guilty of a crime in the next street. Besides, anonymous sources are inadmissible as evidence. What about frame-ups, mistaken identity, or outright lies?
The moral? You are not free to write what you like on social media with impunity and without serious repercussions. You either live with that or without a bank account.
michelaspiteri@gmail.com