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.

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