If it ain’t broke, don’t reinvent it

Small word of advice: if you’re going to ‘reinvent the wheel’... at least try and make sure the thing you invent to replace it does the job as well. 

‘Wheels’ for instance, are not much use unless they’re round and can pivot on an axle. In fact, that is all they need to be and do. Anything else is superfluous. Wheels may differ from other wheels in all sorts of other aspects: some are smooth, some have cogs, some are fitted with tyres or conveyor belts... and others (like the Wagon Wheel, for instance) are even made of chocolate.  

But they’re all round, and will spin if fitted onto an axle. Take away those two qualities, and what you are left with might be any number of things: but it won’t be ‘a wheel’.

I feel much the same way about laws. Laws are, in fact, a little bit like wheels. Open a law-book on any page and start reading, and your head is guaranteed to start spinning. They function as wheels, too: like cogs in the wider machinery of justice. And sometimes – when their teeth wear out a little, and they slowly cease to serve their original function – they might need to be mended or replaced.

But like wheels, they have defining characteristics that cannot be tampered with. The new or amended laws will still need to be ‘round’ and ‘spin’. And they still need to be hooked up to the same machine, and carry on functioning in conjunction with all the other laws that are already in place. 

I hate to say this, because it is the clean opposite of how I usually look at the rest of the Universe: but amending laws is not a job for an artist. It’s a job for a technician or mechanical engineer: the type of person who assesses the value of a detail not for its aesthetic appeal... but purely (and mercilessly) for its function.  

And yet, when people tinker with laws in this country, they always approach the task as though they were Renaissance Masters about to paint the Sistine Chapel ceiling.  It might be Owen Bonnici today, or Carm Mifsud Bonnici yesterday, but it’s always the same. When legislators talk about ‘legal reform’, their hidden artistic side comes to the fore, Suddenly they sound as though they are boldly venturing where no legal reformer had ever boldly ventured before.  

And on the rare occasions when such ‘reforms’ actually do get past discussion stage, the proposals are always unveiled as some great new milestone in human accomplishment. 

Sorry, guys, but what were you thinking? These are laws we are talking about here. We need them to regulate the things we do in our daily life. They have to be clear, unambiguous, and relevant to the contexts they actually regulate. Otherwise, it’s like replacing a boring round wheel with a masterfully designed polyhedron of untold intricacy and splendour. Very beautiful to look at, sure... until you try driving your car on it, and smash headlong into a brick wall.

But never mind. I suppose it’s our fault really. We have, after all, been repeatedly calling for a reform of the Press Act for the last 30-odd years. And we all knew (or should have known) that governments never go about such practical tasks in the clinical way of the mechanical engineer. Their concern is never limited purely to the functionality of the laws they enact or amend; there will be always other (subtle or unsubtle) interests concerned.

So, all things considered, we should have expected the government to produce a masterpiece of Modern Art instead of the boring changes we actually asked for. We should have predicted that a simple request to abolish criminal libel would give birth to a proposed register of bloggers... as well as mandatory mediation (this is libel we’re talking about here, not divorce. Why not include child custody issues while you’re at it?), and a series of legal definitions that seek to define the indefinable.

It remains to be seen whether any of the unnecessary items added to the original bucket list will be worth keeping or not. What interests me is whether any of the original demands were met.

Let’s go over the original list again. What journalists actually demanded was the abolition of libel as a criminal offence; measures to minimise vexatious libel suits; a system of proportionality between fines imposed and the actual damage sustained; as well as an update of the legal definition of ‘libel’ to reflect present realities. (There are of course other issues, but I’m sticking to libel for now).

I’m pleased to see that the first of those demands is met... though it has to be counterbalanced by a 100% increase in the maximum fine. Personally, I don’t have a problem with that at all: but for one detail. Courts enjoy discretion to apply anywhere between the minimum and maximum allowed at law... but they don’t have anything to base that discretionary decision on. What was needed was a system to calculate the amount based on the extent of the harm caused. In pecuniary damages this is self-evident; it is however entirely arbitrary when it comes to damage to reputation.

Raising the fine before establishing that system gives free rein to the courts to impose prohibitive fines, even in cases (such as a cartoon, for instance) where the ‘damage’ falls well within the established parameters of legitimate satire.

We did not get that system, but to compensate we did get a whole new branch of legislative jargon (all gibberish, if you ask me) to establish the Internet as a vehicle through which journalism can take place. We also got new conditions (alongside existing ones) to be applied to the supposedly universal principle of ‘protection of sources’.  

This is odd, because both those things were, a) unnecessary; and b) already amply catered for by the law as it stands.

This, for instance, is the existing definition of ‘printed matter’ in the current Press Act: “any writing printed in typographical characters or by lithography or any similar device or process on paper or other substance, as well as any bill, placard or poster containing any sign or script written, printed, painted, embossed or in any other manner impressed, and includes any record, tape, film or other means whereby words or visual images may be heard, perceived or reproduced.”

Anyone care to suggest a way the Internet does not fit that definition? As far as I can see, about the only way you can circumvent it is by using Egyptian Hieroglyphics instead of ‘typographical characters’. (Only then, nobody would be able to read the message, still less feel libelled by it).  All other means of imparting a written message –‘written’ being a necessary component of the libel definition: for spoken words there’s slander – are neatly covered by sufficiently vague subcategories and provisos. 

The Press Act may be flawed in several respects: but accidentally omitting ‘the Internet’ was never one of its major defects. Yet just look at how curiously the law courts have interpreted this otherwise straightforward bit of legislation. Recently, a magistrate’s court had to go into recess to decide whether a certain blogger (you’ll never guess which) ‘qualifies’ as a journalist or not. The answer was all along right there, in black on white, at the very beginning of the Press Act.

The example brings to the fore another bizarre addition to the reform. In that case, the reason the magistrate had to take time to settle this matter was because the prosecution had tried to force the defendant to divulge her (big hint right there, folks) sources. 

Now, THIS is indeed an area where the Press Act is antiquated and in urgent need of an update. The protection of sources is an operating principle in journalism as a whole: I stress ‘as a whole’, because it is not limited to professional journalism, and journalism is not the same thing it was a few years ago. 

It should not be up to the court’s discretion to decide if this or that blogger can avail of this or that right, based on eligibility criteria that are professional in nature. If you’re imparting news, on any substance, through any means, you are performing the work of a journalist. Whether you’re getting paid for it or not – or, even worse, whether you’re enrolled with the Department of Information, and have a Press Card to prove it – is neither here nor there.

Did any existing law need to change? Perhaps: the definition of ‘broadcasting’, for instance, is limited to ‘on the air’ transmissions. It is self-evidently the product of a forgotten Rediffusion age.  But these anachronisms can very easily be ironed out. Just add ‘or any other means’ after every sentence, and you’re already there.

But no: instead of broadening the definition to cover citizen journalism (among other more recent developments: I’ve already mentioned political blogs), and doing away with the archaic idea of ‘registering’ journalists as a prerequisite for basic rights... the proposed Media and Defamation Act went in the clean opposite direction.

You would have to register either as a professional journalist through the DOI, or as a non-professional journalist through the ‘Blog Register’. Either way, you would have to enter a register simply to qualify for rights that should be yours anyway.

An even bigger problem arises when you consider how existing libel laws are actually applied. Let’s take a hypothetical scenario. A takes offence at an allegation made in public by B, then printed as a news story by editor C. A, under the present laws, can sue both B and C... and anyone else who repeats the same allegation as ‘printed matter’ by the above definition.

Even without any changes to the law, the implications start to look a little staggering when you consider how news is propagated today. Why stop at C? Once the story went online, it was posted as a Facebook status by D. E found it very funny, and made a meme that was shared by F all the way to K: by which time it was tweeted by L, who was X million followers around the world. Next thing you know, you have to invent whole new alphabets to account for all the people you can legally sue.

The government’s answer to this dilemma, it seems, was to just draw an imaginary line, and declare that anyone on this side – the registered bloggers – can avail of basic journalistic rights; all the rest can’t.

Great, that sounds like just the sort of simplistic solution we needed. So what happens if a libellous article is circulated among thousands of users on social media? Let me guess: all the people who shared it without being registered could face a 1,000 euro fine? And – if mediation fails, of course – the ones who are registered can face up to €20,000 if found guilty of libel (though they get to ‘protect their sources’ as a special bonus?) 

That’s about the only way I can see it actually working in practice. And from that angle: yes, it does look just a little like an attempt to curtail the freedom of the Internet...