Magistrate Francesco Depasquale has made another attempt to force the abolition of criminal libel in Malta, which has laws promoting freedom of expression but then gives people to possibility to criminally sue someone for libel, which carries an effective prison term.
Describing this situation as "ambivalent", the magistrate quoted various European institutions that held that criminal defamation "is not a justifiable restriction on freedom of expression".
He was ruling in a criminal case filed by former Illum editor Julia Farrugia against columnist Daphne Caruana Galizia over a number of blogs she claimed were libellous. Earlier this week, a civil libel case Ms Farrugia had filed over the same blogs was upheld and she was awarded €3,000 in compensation.
The criminal case was, however, thrown out over a technicality because of a missing document in the form of a criminal complaint. A criminal case cannot be pursued without a formal complaint and this was missing from the acts of the case.
But, notwithstanding this, the magistrate took the opportunity to once again drive the point home for the abolition of criminal libel proceedings. He had already expressed his views in previous judgments, including when he referred the matter to the Constitutional Court to deem whether simultaneous civil and criminal libel suits potentially breached the human right to freedom of expression.
Among the European institutions the magistrate quoted was a 2004 recommendation by the Council of Europe's ministerial committee which held that "damages and fines for defamation or insult must bear a reasonable relationship of proportionality to the violation of the rights or reputation of others, taking into consideration any possible effective and adequate voluntary remedies".
The same principle was expressed by the United Nations Commission on Human Rights which in 1999 held that "sanctions for defamation should not be so large as to exert a chilling effect on freedom of expression and the right to seek, receive and impart information; penal sanctions, in particular imprisonment, should never be applied."
The magistrate also quoted a report by the OSCE Representative on the freedom of the media that declared that "criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws".
He said these principles had also been upheld by the Council of Europe Parliamentary Assembly which in 2007 presented a resolution to abolish prison sentences for defamation "without delay" and called for guarantees for "no misuse of criminal prosecutions for defamation". It said criminal defamation sentences were "provoking a corrosion of fundamental freedoms".
Magistrate Depasquale called on the Maltese Parliament to "seriously consider" these declarations and embrace them by amending laws that still accepted criminal libels.
Meanwhile, in a separate sitting, Mrs Caruana Galizia also touched upon the subject of criminal libel laws while testifying during a libel case filed against her by MaltaToday editor Saviour Balzan during which there was a mention of a possibility of an agreement to settle the issues.
"Mr Balzan and I both have the same concerns. The law needs to be changed and the pressure for this to happen is not going to come from politicians as they are well-served by the law as it stands. The pressure should come from journalists who are independent. We cannot carry on like this," Mrs Caruana Galizia said as she stressed against journalists attacking other journalists.
"I think the situation of journalists attacking each other is actually causing more harm than politicians attacking us. Abroad you have a journalists versus politicians situation, but in Malta it is certain journalists and politicians against other journalists and politicians.”
She noted that Malta had entered a "dangerous situation" where journalists were being "harassed by politicians".
“Libel proceedings, even if they win, are a deterrent to journalists due to costs and time wasted. I notice many of my fellow journalists stop short of outright criticism [of politicians], simply to avoid vexatious lawsuits.”
Turning to the possibility of an agreement, Mrs Caruana Galizia said that she had no interest in carrying on “a stupid and pointless personal battle”.