Tag Archives: Front Against Censorship

Proposed amendment to the Media and Defamation Act in relation to defamation lawsuits decided by competent Courts outside Malta (SLAPP)

The Front Against Censorship is proposing an amendment to the the Media and Defamation Act in relation to the threat posed by SLAPP lawsuits to the financial viability of the Maltese press.

The Press Act was recently replaced by the new Media and Defamation Act. The Front Against Censorship had negotiated the inclusion of a large number of amendments to the original Media and Defamation Act, which the Government had accepted. The Front believes that the result was a law which represented a significant step forward in safeguarding press freedom in Malta.

Shortly after the negotiations between the Government and the Front were concluded, a new problem emerged in the form of SLAPP lawsuits against the Maltese press. The amendment to the Media and Defamation Act proposed by the Opposition when the Media and Defamation Bill was being discussed in Parliament was reviewed by the Front. This was found to run counter to the Brussels I Regulation, because it a priori denied the jurisdiction of Courts located in other EU Member States when the defendant of a defamation case was resident or domiciled in Malta. The resulting use of the public policy exception found in the Brussels I Regulation would have risked the law being struck down by the ECJ or in infringement procedures being imposed against Malta.

The Front believes that the present conundrum can only be ultimately resolved through an EU wide directive. In the interim, the Front has sought to a way to provide a buffer for the Maltese press which would still be compliant with the Brussels I Regulation.

Thus whilst not denying Courts found in other EU Member States jurisdiction to hear defamation cases concerning a defendant resident or domiciled in Malta, the Front is proposing that the Maltese Courts give due consideration to a number of aspects prior to deciding whether to enforce a decision given by a foreign Court.

In summary, the amendments guide the Maltese Courts to consider whether the defendant was accorded equal rights in the foreign Court, whether the damages imposed by the foreign Court would result in the financial ruin of the newspaper or compromise its ability to operate, and whether the judgment is likely to impede the newspaper’s journalistic freedoms or freedom of expression. We believe that these protections are compatible with the public policy exception of the Brussels I Regulation as explained in the legal rationale provided with the amendment.

This would mean that the jurisdiction of foreign Courts would not be ruled out a priori, and that the judgments given by foreign Courts could still be applied in Malta, as long as they were not in violation of the rights granted above.

It is worth noting that the maximum amount of damages which may be awarded in a defamation case through the Media and Defamation Act is €11,640. This figure reflects the maximum damages which one may incur for a single story. This maximum amount specified in the law for each story reflects the economic situation of the Maltese press. This means that €11,640 is regarded as a significant deterrent for publishing defamatory material, in excess of which press freedom would be curtailed.

The continued existence of a free press is a public good which needs to be protected. These amendments will provide a buffer against financially ruinous judgments given by foreign Courts which do not respect the economic realities of the local press, whilst simultaneously complying with EU regulations. It is our expectation that this will allow the local press to continue to fulfill its essential function until an EU Directive hindering SLAPP lawsuits has been introduced.

Draft Amendment to Counter SLAPP Lawsuits against the Media

FKC Legal Rationale Anti-SLAPP Amendment

PR FKC Anti-SLAPP Amendment

Stqarrija – Front kontra ċ-Ċensura – 1 ta’ Ġunju 2018

Proposta għal emenda fil-Liġi dwar il-Midja u l-Malafama b’rabta ma’ kawżi ta’ malafama deċiżi minn Qrati kompetenti barra minn Malta

Il-Front kontra ċ-Ċensura qed jipproponi emenda fil-Liġi dwar il-Midja u l-Malafama, b’rabta mat-theddida li jġibu magħhom kawżi SLAPP għall-vijabilità finanzjarja tal-midja Maltija.

Il-Liġi tal-Istampa dan l-aħħar kienet sostitwita mil-liġi l-ġdida dwar il-Midja u l-Malafama. Il-Front kontra ċ-Ċensura kien innegozja l-inklużjoni ta’ għadd kbir ta’ emendi fil-liġi oriġinali dwar il-Midja u l-Malafama, liema emendi l-Gvern kien aċċetta. Il-Front jemmen li r-riżultat ta’ dan kien liġi li kienet tixhed pass kbir ’il quddiem biex tkun salvagwardjata l-libertà tal-istampa f’Malta.

Ftit wara li ġew konklużi n-negozjati bejn il-Gvern u l-Front, inħolqot problema ġdida minħabba l-prospett ta’ kawżi SLAPP kontra ġurnalisti Maltin. Il-Front xtarr sewwa l-emenda għal-Liġi dwar il-Midja u l-Malafama proposta mill-Oppożizzjoni meta l-Abbozz ta’ Liġi dwar il-Midja u l-Malafama kien qed jiġi diskuss fil-Parlament. Din l-emenda kienet tmur kontra l-Brussels I Regulation, għaliex kienet tiċħad a priori l-ġuriżdizzjoni ta’ Qrati fi stati membri oħra tal-Unjoni Ewropea meta l-konvenut f’kawża ta’ malafama jkun jgħix f’Malta. L-użu tal-eċċezzjoni tal-policy pubblika li tinsab fil-Brussels I Regulation kien joħloq is-sogru li l-liġi tkun annullata mill-ECJ jew fi proċeduri oħra imposti kontra Malta.

Il-Front jemmen li l-problema li nħolqot tista’ tkun solvuta permezz ta’ direttiva mifruxa fl-Unjoni Ewropea kollha. Sadanittant, il-Front qed jipproponi forma ta’ protezzjoni għall-midja Maltija li xorta waħda hija konformi mal-Brussels I Regulation.

Filwaqt li ma jiċħadx il-ġuriżdizzjoni ta’ Qrati fi stati membri oħra tal-Unjoni Ewropea biex jisimgħu kawżi ta’ defamazzjoni fejn il-konvenut ikun jgħix f’Malta, il-Front qed jipproponi li l-Qrati Maltin jikkunsidraw numru ta’ aspetti qabel ma jiddeċiedu jekk deċiżjoni minn Qorti barranija għandhiex tiġi infurzata jew le.

Fil-qosor, l-emendi jiggwidaw lill-Qrati Maltin biex jikkunsidraw jekk il-konvenut ingħatax drittijiet indaqs fil-Qorti barranija, jekk il-ħlas ta’ danni impost mill-Qorti barranija jwassalx għall-falliment finanzjarju tal-ġurnal inkwistjoni jew jikkompromettix l-operat tiegħu, u jekk id-deċiżjoni hix se xxekkel il-libertà ġurnalistika jew il-libertà tal-espressjoni ta’ dak il-ġurnal. Aħna nemmnu li din il-protezzjoni hija kompatibbli mal-eċċezzjoni tal-policy pubblika tal-Brussels I Regulation, kif spjegat fin-noti legali provduti mal-emenda.

Dan ikun ifisser li l-ġuriżdizzjoni ta’ Qrati barranin ma tkunx eskluża a priori, u li s-sentenzi mogħtija minn Qrati barranin ikunu jistgħu jiġu infurzati f’Malta sakemm ma jiksrux id-drittijiet imsemmijin hawn fuq.

Ta’ min jinnota li l-ammont massimu ta’ danni li jista’ jintrebaħ f’kawża ta’ malafama taħt il-Liġi dwar il-Midja u l-Malafama huwa ta’ €11,640. Din iċ-ċifra tirrifletti d-danni massimu għal artiklu wieħed biss. Dan l-ammont massimu speċifikat fil-liġi għal kull storja jirrifletti l-qagħda ekonomika tal-midja Maltija. Dan ifisser li l-ammont ta’ €11,640 hu meqjus bħala deterrent sinifikanti għall-pubblikazzjoni ta’ materjal defamatorju, u jekk jinqabeż, il-libertà tal-istampa tkun imrażżna.

L-eżistenza ta’ midja ħielsa hija benefiċċju pubbliku li għandu jiġi mħares. Dawn l-emendi jipprovdu protezzjoni kontra sentenzi minn Qrati barranin li jistgħu jikkawżaw falliment finanzjarju u li ma jirrispettawx ir-realtajiet ekonomiċi tal-midja lokali. Fl-istess waqt l-emendi huma konformi mar-regolamenti tal-Unjoni Ewropea. Permezz ta’ dawn l-emendi, il-midja lokali tkun tista’ tkompli taqdi l-funzjoni essenzjali tagħha sakemm tiġi introdotta direttiva tal-Unjoni Ewropea kontra l-kawżi SLAPP.

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Press Release – Front Against Censorship – 04/03/2017

Media and Defamation Bill crosses red lines

The Front Against Censorship is being reconstituted after the publication of a bill which crosses the line on a number of issues connected with the right to freedom of expression. Although we can concede that the bill is, in some respects, an improvement on the current situation, it also entails a number of setbacks. Government is proposing changes which contradict the principles which informed its electoral manifesto, particularly those regarding its commitment to the removal of censorship laws.

The Front welcomes the removal of obscene libel and the the fact that garnishees will no longer be issued in civil libel cases. However, it takes exception to the increase in damages which can be awarded for cases of civil libel, and that the Bill has completely failed in its stated aim of removing criminal libel. The Front also feels it must express its dissatisfaction with the compulsory registration of news agencies, the new restrictions on the protection of sources, and the failure to remove laws prohibiting criticism of the President. The reasons for these concerns are detailed hereunder.

The Front would also like to announce that while it welcomes the fact that the Government seems to be open to the suggestion of amending the bill, it will refuse to compromise over issues of principle.

Detailed reaction to the Bill

1) The Front welcomes the removal of obscene libel (article 7 of the Press Act). Under this law, anyone found guilty of having written a text which offends public morals or decency can be fined or even be handed a prison sentence of up to three months. Due to its ambiguity, the law has been used in the past as a means of suppressing artistic expression and its removal is thus welcomed by the Front.

This measure had been proposed by the Front itself and is another step in the right direction, along with the removal of theatre censorship, the removal of the law against the vilification of religion and the transformation of the pornography law into an extreme pornography law. We believe that the censorship regime over the arts has now been effectively dismantled by these measures.

2) The Front welcomes the fact that it will no longer be possible for garnishees to be issued for cases of civil libel (article 26, sub article 6 of the Bill). The Front believes that the issue of garnishees in such cases amounted to an abuse of the law, putting the livelihood of journalists at risk and compromising the principle of innocence until one is proven guilty. Such measures instil a sense of fear, with journalists refraining from reporting certain stories. This would have obvious negative repercussions on the role played by the press in keeping people in positions of power accountable.

3) The Front contests the steep hike in damages for civil libel – from €11,646.87 to €20,000 (article 9 of the Bill). The Front considers these damages to be too high and argues that the harm done to an individual’s reputation must always be weighed against the benefit which society draws from the existence of a free press. The scale of the damages will not only discourage newspapers from touching upon sensitive issues, but also threatens the viability of an independent press, with negative effects on media pluralism and democracy.

The Front also notes that no effort was made to ensure that the damages were proportional to the means of a particular organ of the press. The resulting Bill is thus classist, rendering freedom of expression the exclusive privilege of well-financed media houses which can afford to absorb such losses.

Furthermore, the Front observes that it has not been shown that the revenue of the press has increased proportionally to the increase in damages. Without such an economic calculation, the argument stating that the amount of damages are merely being updated to reflect the present times has failed to be backed up by any evidence. One could equally well say that this is simply a pretext for making the law more repressive that it presently is.

The Front also considers the last part of article 9 of the Bill a dangerous provision whose aims are unclear. In this part of the article it is stated that in addition to the damages for civil libel, further damages can be awarded in line with any legislation providing for actual loss, including loss of earnings. The fact that this provision is part of article 9 indicates it has other aims than those of commercial libel, pointing to the possibility that it is meant to provide for damages which go beyond the scope of redress for defamation. It worth noting that any quantification of such a ‘loss of earnings’ can only ever be conjectural, as would be any attribution of this ‘loss of earnings’ to the defamation itself, as opposed to other causes. As such this is yet another potential source of abuse. Either way this provision seems to be amiss in article 9 of the Bill.

4) The Front is not satisfied with the reform of criminal libel. The article regulating criminal defamation (article 252 of the Criminal Code) will not be removed. Instead, it is being amended in a confusing manner (article 25, sub article (d) of the bill).

Firstly, those found guilty under article 252 are still facing a fine or imprisonment of up to three months. Secondly, although the amendment removes criminal defamation when this is performed through ‘writing, drawing or other means’, it does not do so when criminal defamation is performed through ‘words, gestures, insults or other means’. If the intention of the legislator was to remove criminal defamation in the case of writing, the legislator has failed in this aim since ‘other means’ also includes writing.

In the proposed amendment, the legislator is also going beyond the current law by including the word ‘insults’ in the forms which have to be considered when determining whether criminal defamation has been committed. It is to be remarked here that ‘insults’ are already included in ‘words’. Hence one can only conclude that the legislator is attempting to put a special emphasis on insults as a way of committing defamation. The Front believes that this inclusion was misguided and could result in the application of criminal defamation to a wider category of expression than would otherwise have been the case.

Finally, the Front does not see the sense in treating libel cases civilly and then having a separate criminal defamation law applying to slander. This treatment is both inconsistent and overly complicated, and could be simplified by having one civil defamation law subsuming both cases.

5) The Front also takes exception to the requirement requiring editors of websites to register officially (article 29, sub article 2 of the Bill), due to the fact that the definition of ‘website’ is too ambiguous. In fact, it includes any news service relating to news and current affairs. This means that individuals operating websites can be fined up to €1,000 for having shared their opinions without having previously registered officially. It is hard to believe this was the intention of the legislator. One must take care not to limit the right to freedom of expression on the internet through the imposition of financial hurdles.

The Front also wishes to take a stand against the provision which grants protection of sources only to registered news services or to journalists who practice on a full-time or part-time basis (article 21 sub article 2). Our opposition to this matter is threefold. Firstly, the use of sources might be important for other categories of people other than those covered by the law – for instance, activists or citizen journalists. Secondly, the manner in which this right is being curtailed is not consistent with the importance and protection accorded to it by article 21 sub article 1 of the Bill. Thirdly, the Courts have defined the term ‘journalist’ as applying to a very wide category of people, and it is our belief that this provision will impinge on and impose restrict this definition.

6) The Front notes that article 72 of the Criminal Code, relating to offences committed when raising various forms disaffection towards the President is being updated by the Bill (article 25, sub article (b)). The Front does not understand why the opportunity was not taken to repeal this article altogether. Even in its updated form, this anachronism is not consistent with freedom of expression. It is inconceivable that a person should be fined or granted a prison sentence of one to three months for showing various forms of disapproval towards the President. In a Republic where all citizens are equal in front of the law, the President should not protected from criticism in this way, especially since the holder of this Office is allowed to take political stances and promote causes which find his or her favour.