Monthly Archives: April 2017

The right to insult

Published in Sunday Times of Malta 16/04/2017

Originally, Labour intended to reform press and libel laws to help lift the burden of hefty legal fees, libel damages and fines from a financially beleaguered press. This noble cause was openly embraced by the government until somewhere down the line the principles guiding the drive to libel reform became somewhat skewed.

Government MPs and members of the Cabinet recently made speeches in Parliament which laid bare their true feelings on libel laws – they complained about being unjustly attacked and defamed by their critics. These men in power thought they would have the public’s sympathy simply because their feelings were hurt, but they are deluding themselves if they think the public would ever endorse a libel reform based largely on the misgivings and discomfort of men in power.

The proposed government bill will introduce improvements in some ways. Most of the wording of the civil libel reform is copied from British law, which earned the approval of the English writers’ organisation, PEN. The British defamation act provides a defence against defamation accusations with the concept of honest opinion in matters of public interest.

However, the government’s proposed bill contradicts the aim which it had previously extolled by strengthening criminal libel law and by increasing civil libel damages by almost 100 per cent of their previous value. Where the wording of the original British bill was modified, changes have been made which might seem innocuous but have a larger than perceived impact in practice, such as the replacement of “defamatory statements” with “defamatory words”.

Historically, libel laws have always served to protect institutions and those who are in power and the latest libel case concluded in favour of Transport Minister Joe Mizzi is testament to this. A man took to Facebook to insult the Minister of Transport, describing him as “corrupt” and a “cuckold” in what seems to have been a fit of anger triggered by the fact that the resurfacing of the road next to his house took 10 months to be completed. The court considered the words used by the defendant as simultaneously insulting and defamatory and hit him with €7,000 in damages.

The minister refused to accept the money, but this patronising act, so emblematic of a self-righteous, forgiving Christian, does not change the fact that Mizzi and his colleagues in government subscribe to the view that they should not be insulted and that the law should serve this purpose.

The improvements in the defamation and civil libel law will not materialise if the government retains criminal libel as per article 252 of the Criminal Code. The proposed bill will also add the term “insults” in the already existing article, making criminal libel even more effective. It’s useless if, on one hand, the government tries to make a progressive step forward, while at the same time it retains the status quo which it is supposedly trying to defeat. This is making a mockery of the bill.

The bill can be improved with a thorough examination and an intelligent review. It doesn’t need to be discarded altogether, but one has to be cautious with the wording of laws which, in effect, depend on the proper interpretation of language and words in context. In the Joe Mizzi case the court interpreted the words of the defendant as literal statements of fact. Both in formal and informal settings, insults may not always carry a literal meaning, but are rather meant to invoke a rhetorical effect.

Politicians know this well, they’re not idiots – although we should retain the right to call them so. To protect themselves politicians might instead bring up the excuse of the nanny state.

It may be argued that it is in the interest of law and order that innocent individuals be protected against unjust defamation, but the idea that the State should defend one’s feelings and emotions is bizarre, and only meant to defend the status and position of institutions and men in power.

Our men in power must come to terms with the fact that offending and insulting them comes part and parcel with the package of liberal politics and free speech. I know they are aware of this, but they should also do their duty, put aside their personal interests and do what is right for democracy.

If the government truly wants to keep being progressive in legislative reforms, this time round, it must be bold enough to go against its own innate defence mechanism.

http://www.timesofmalta.com/articles/view/20170416/opinion/The-right-to-insult.645297

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How Not To Cross The €7,000 Line Of Free(ish) Speech

Co-Authored with Ingram Bondin for lovinmalta.com

An irate man from Birgu was sentenced to pay €7,000 in damages this week for an offensive Facebook post about Transport Minister Joe Mizzi. For 18 months this man had been inconvenienced by roadworks carried out in front of his house. But when he discovered the road next to his had been completed for the Queen’s visit, the man lost his temper, took to Facebook to express his frustration, and, in the court’s opinion, crossed a line worth €7,000.

But what exactly did the man say?

The Court took exception to the fact that the man had, amongst other things, called Mizzi ‘a cuckold’ (kurnut), ‘corrupt’ (korrott) and a ‘vindictive Minister who deeply hates Birgu (ministru vendikattiv bintern li jobod Birgu).

To determine whether these statements were defamatory, the Court sought to distinguish between a statement of fact and a value judgement. While facts can be demonstrated, value judgements cannot be susceptible to proof, because they can be impossible to prove, the court opined.

However, the Court considered the man’s statements literally, as statements of fact. This meant the accused could not defend himself by claiming this was his opinion, but could only defend himself by actually proving that Mizzi was for instance, a cuckold – which to be as literal as the court – is defined as “the husband of an adulteress”.

Presumably, the man could not prove these facts, so his statements were regarded as defamatory and Mizzi was awarded €7,000 in damages.

‘Blatant abuse of social media… and cowardly’

The Court also condemned the man’s behaviour as a blatant abuse of social media. According to the Court, Facebook’s intended use is ‘to bring people closer together, and to make it easier for one to communicate with a few or many people in an immediate and effective manner’.

With this sentence the Court seems to have single-handedly decided upon the legitimate use of social media, restricting expression to diplomatic platitudes with explicit disclaimers that the statements made are only ones of opinion.

The court has also exaggerated the effects of the comments on the Minister’s reputation.  It argued that the fact that such ‘frivolous and capricious’ posts had been shared with no fewer than 700 friends (!), had made them especially harmful to the reputation of the Minister.

The fact that the man had only removed the posts, instead of apologising on his own Facebook account, was also found to be very disconcerting.

Amongst other things, the Court especially disapproved of the fact that the man had insulted the Minister in what it called a brazen and insolent manner, even going to the point of describing his behaviour as cowardly and malign.

It is curious that the Court felt the need to remark on the insults when it was in fact looking to establish whether the words were defamatory or not. For if the Court recognises a word like “cuckold” was intended as an insult, does this not suggest it was not intended as a literal statement of fact?

This is a dangerous precedent

The emphasis placed by the Court on insults is a dangerous precedent to our freedom of speech and comes in the wake of the Government’s new Media and Defamation Bill which aims to strengthen criminal libel by creating a new emphasis on insult as a means of committing defamation.

This change can result in criminal libel being even more far reaching than the existing legislation, since it risks expanding the range of criminalised expressions. Insult has a rhetorical function of its own and one should be careful not to lump it together with defamation in order to appease thin-skinned public figures.

It should go without saying that the right to insult comes part and parcel with the right to freedom of speech and this is also the reason why we should continue to oppose Government’s proposed Media Bill which will further stifle freedom of speech.

Inflated Damages

If there is one thing which sticks out like a sore thumb in this judgement is the exaggerated amount of damages which were awarded to Minister Mizzi in this civil libel case.

While it is true that social media allows one to communicate one’s message to a substantial number of people simultaneously, one has to also consider how seriously the message of the user in question is taken. In this case, its impact seems to have been excessively magnified.

The tenor of the judgement suggests that this man has been made an example of in order to rein in what is perceived to be an excessive freedom of expression.

Lately, it has become commonplace for politicians who find themselves under attack by some section or other of the press to complain that there isn’t enough of a deterrent to stop people from harming their reputation.

The new Media and Defamation Bill itself was marketed as a measure to discipline the excesses of certain prominent blogs. But doubling the maximum damages which can be awarded to €20,000 was always going to affect every press outlet and every citizen who exercises his freedom of expression.

This judgement has made it painfully clear that no one is safe from the increase in repression which will be introduced by the Media Bill in its present form. There will come a time when freedom of speech will no longer be constantly under siege from petty and touchy politicians, but until then we need to keep pushing back against this onslaught.

https://lovinmalta.com/opinion/analysis/how-not-to-cross-the-7-000-line-of-not-so-free-speech