The order by Magistrate Joe Mifsud prohibiting the popular TV programme Xarabank from broadcasting interviews in the Liam Debono case has provoked a cacophony of voices both for and against. Victor Paul Borg spoke to legal experts to compile this analysis of the issue.

When are gagging orders justified and needed? 

The consensus within the justice system is that curbs on media coverage of certain cases undergoing court proceedings may sometimes be needed for the proper administration of justice.

These curbs are usually justified in high-profile criminal prosecutions in trial by juries that attract intense media attention. The idea is that jurors are more likely to be influenced by media coverage than judges – the professional judiciary is more capable of rising above the fray in the media and judging cases dispassionately. In fact, in those cases that can be optionally heard by a jury or judge, criminal lawyers would prefer a judge if their defence rests on points of law but would prefer a jury if their arguments are based on sowing doubt about the alleged crime or at least apportioning of guilt.

Jurors are exhorted to take into account in their deliberations only what they would have heard and seen in the courtroom during the trial, and different countries have adopted different measures to limit deviations from this necessity. In the US, for example, a long list of jurors is shortlisted to the final lot through a rigorous selection process, especially necessary because the media reportage of cases is barely limited by law or custom.

In Malta the pool of jurors is in practice restricted to people above a certain level of education. In the UK, where virtually anyone who is on the electoral register can be called up for jury service, the Contempt of Court Act bears down more heavily on potential media coverage. 

But irrespective of jury selection, senior members of the judiciary have told this newspaper that curbs on the media have to be the exceptions, and moreover the justification for doing so has to be enunciated in such decrees to make them as transparent and instructional as possible. 

Are Malta’s legal provisions abusive?

The only law in Malta that empowers the judiciary to curb media coverage of ongoing cases in front of criminal courts is Article 517 of the Criminal Code. This law is seen as a blunt instrument because it does not specifically oblige a magistrate or judge to justify any gagging order.

This point of not having to state reasons for the order was in fact mentioned in the decree of Magistrate Mifsud. As such, justice experts have told this newspaper that Article 517, as well as the gagging order imposed by the court last week, may be incongruous with the European Convention on Human Rights.

In his decree, Magistrate Mifsud himself alluded to the inadequacy of Article 517 by mentioning the UK’s Contempt of Court Act as a more exemplary law that could be emulated in Malta. Instead of obliging courts to issue gagging orders, the UK’s law places the burden of discretion on the media itself – a media outlet can be prosecuted for “publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”.

Times Talk: 'God forbid jurors are influenced by TV' - Peppi Azzopardi

The measure of ‘substantial risk’ has been developed in case law, and this includes what’s known as the ‘fade factor’ – the greater the time between publication and trial, the lesser the likelihood of ‘substantial risk’.

Illegal or inappropriate comments about Debono have been rife

Article 517 was predicated on similar reasoning. A senior member of the judiciary told The Sunday Times of Malta that it was designed for trials by juries at a time when the period between arraignment and trial would be measured in months not exceeding single digits, unlike the current scenario when that timespan runs into years.

Article 517 appears to have only been invoked about a dozen times in the past 40 years or so, and it has been progressively falling out of favour with the judiciary in recent years.

The understanding is that gagging the media for years on end, even if unwittingly, on a particular case may be an indefensible impingement on freedom of expression. This complicates Malta’s situation, for although an emulation of something like the UK’s Contempt of Court Act is smarter than the bald provisions of Article 517, the UK’s legal regime is predicated on the ‘fade factor’ – and in Malta, given that long delays are the norm, the ‘fade factor’ would nullify ‘substantial risk’. 

Proceedings against media outlets under the Contempt of Court Act in the UK have been rare, although there were a cluster of prosecutions seven or eight years ago when British tabloids were slapped with large fines. Two jurors were also prosecuted at the time for browsing social media for details on the cases or on the accused during the trial. One of the jurors was imprisoned for eight months for conducting research and communications online, particularly on Facebook, into one of the co-defendants.

The rationale for these harsh sentences in the UK has been that since almost everyone can be selected for jury service, then strict curbs on online material that could create prejudice are needed to preserve the integrity of the jury system. As already pointed out, jurors in Malta are selected from those with a higher level of education, and this may theoretically make them less susceptible to influence by coverage of cases in the media and the chatter on social media. 

Can gagging orders be effective in the age of social media?

As the reach of traditional media wanes, social media is becoming the primary medium that plays the larger part in forming or nurturing public opinion. It is social media, and the cacophony of news sources and commentary online (including fake news), that may now have the greater influence on jurors, especially in high-profile cases. Studies in the UK have quantified the scale of the problem: a significant percentage of jurors have actually been checking news and chatter about defendants online during the trials themselves. 

In the Liam Debono case, social media has been ablaze with vilification: comments that condemn Debono spike with every mention of his case in the traditional media. The gag by Magistrate Mifsud on Xarabank was met on social media not with sober discussion about the issue of fair trial and media freedom but with populist disparagement of Xarabank and with hideous baying for Debono’s blood. Illegal or inappropriate comments about Debono have been rife; there has been no censure for much brazen illegal content on social media. 

Instead of putting a lid on judgmental or prejudicial comment on the parties involved in the case, the prohibition on Xarabank has had the effect of intensifying the condemnation of Debono.

The greater peril in this case is not so much trial by established media, it is trial by social media. The trial by social media has already happened. And in this social frenzy of condemnation before trial, the plea of Debono’s legal defence as well as Peppi Azzopardi, on whom the gagging order was imposed, has been whether Debono can be assured of a fair trial in the first place.

Courts cannot operate in a vacuum

This situation calls into question whether gagging orders on the traditional media are wise, proportionate and effective. 

What is the role of media in cases undergoing court proceedings?

The media’s role is to define issues and set the discourse, as well as uncover wrongdoings, in the public interest. It is within the media’s responsibility to reveal flaws in court processes and proceedings. Courts do get it wrong sometimes, and media coverage of flawed court processes or decisions is essential for amendment or reform.

Yet, only courts are able to establish guilt and apportion blame, in criminal cases particularly. In the courtroom the full clinical and forensic details of the case are laid out, expert testimony is heard, arguments and counterarguments are made – this allows a court to be uniquely positioned to decide on the case before it.

Any journalist or media outlet that attempts to apportion guilt or innocence even by insinuation would be presumptuously usurping the role of the court and creating undue burden on the court. Journalists have to be even more careful not to create the burden of influence in trials by jury. 

At the same time, it is within the media’s responsibility to make revelation and initiate discourse in the public interest, and that includes any revelations into omissions in the court or investigatory process. Yet the media has to carry out this task judiciously, without meddling in the core court process in which guilt is apportioned, and without being sensationalist. For example, two British tabloids were found guilty of contempt of court because they published pictures of the defendant brandishing a gun – that was deemed extraneous and prejudicial to the case because bereft of context were insinuative of the defendant’s character by sensationalism. 

Would the interview with Liam Debono on Xarabank have been similarly prejudicial? Mr Azzopardi has insisted that details of the incident were not going to be discussed during the interview and, in replies to questions from this newspaper, he said that the point of the interview was to get to know Mr Debono as well as the other party, Simon Schembri, in two separate video interviews. Azzopardi explained that this is the format of Xarabank: to get to know something of the persona and the humanity of people who have endured trauma and misfortune. 

Xarabank’s style appeals to the emotions, not the intellect – it’s been attacked for being shallow and sensationalist – but that’s beside the point under examination. The sole question is whether the interview with Debono would have prejudicially influenced a trial by jury. 

Azzopardi maintained that in a situation where Debono has already been widely condemned by being depicted as a “monster”, a short video casting a view on his more human side and even defects of character, without any discussion of the incident or insinuations into guilt or otherwise, cannot be dismissed as prejudicial.

Another consideration here would be the ‘fade factor’ – an interview aired just before or during the trial is one thing, but it’s another thing if it’s broadcast many months or even years before the trial.

In these situations that fall on the grey area, the tendency of courts in recent decades has been to err on the side of media freedom – that’s why senior judges have maintained that any curbs on the media have to be the exception.

Justice sources often cite a landmark ruling in the European Court of Human Rights dating back to 1979 that still resonates today. One of its salient nuggets of wisdom bears repeating: “There is general recognition of the fact that the courts cannot operate in a vacuum. Whilst they are the forum for the settlement of disputes, this does not mean that there can be no prior discussion of disputes elsewhere, be it in specialised journals, in the general press or amongst the public at large.

“Furthermore, while the mass media must not overstep the bounds imposed in the interests of the proper administration of justice, it is incumbent on them to impart information and ideas concerning matters that come before the courts just as in other areas of public interest. Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them.”

Magistrate’s decree

In the report in the last Sunday Times of Malta, it was stated that the newspaper was unable to procure the legal application filed by Simon Schembri’s lawyer objecting to the airing of Liam Debono’s interview, and neither the submission by the Attorney General. The Sunday Times of Malta was reminded that Magistrate Joseph Mifsud’s decree, available to all, made direct reference to both.