The serpentine road of the defamation Bill

The Media and Defamation Bill has been the result of a large number of twists and turns.

A Bill such as this one touches upon the sensitive issue of freedom of speech and pits powerful and opposed interests against one another. Unforeseen events and the ensuing controversy have also left a mark on the Bill. I will attempt to give an account of what has happened so far from the perspective of the Front Against Censorship.

From obscene libel to Chris Cardona

The Front Against Censorship had demanded press reform for a long time. Our main wish was the full implementation of our programme for the removal of artistic censorship. Unfortunately the repeal of the law of obscene libel had been postponed until a comprehensive reform of the Press Act could be put together.

In April 2016, Minister Owen Bonnici started hinting that the government was also discussing the possibility of removing criminal libel. At the time there seems to have been no consensus on this measure in the Labour Cabinet, and it is to Owen Bonnici’s credit that he persevered with this project.

Then there was news that this Bill was to be tabled in October 2016, but this took longer than expected as consultation was still going on at the time.

During this period we had been concerned that the removal of criminal libel might have been accompanied by an increase in civil libel damages as a compromise in order to carry the reform through. This would have meant going from the frying pan into the fire. 

For although criminal libel potentially carried a prison sentence, this was not being meted out. On the other hand, an increase in damages was guaranteed to have a chilling effect on the press. 

Our suspicions about a plot to increase civil libel damages seemed to be confirmed when a number of prominent Nationalist turncoats aboard the Moviment’s bandwagon started to publicly agitate for civil libel damages to be increased.

This marked an escalation from the usual stream of complaints voiced by Labour MPs about the need to do something in order to discipline unfavourable press reporting because it was hurting their reputation.

Then at the end of January 2017, the Cardona case exploded on the scene. Garnishees were used in conjunction with civil libel as a punitive measure and Labour supporters were worked up into a frenzy by the Labour media.

Many seemed to have lost the plot completely at this juncture, but Owen Bonnici did not, and took the opportunity to table a Media and Defamation Bill which made the use of garnishees against journalists impossible. 

The Bill and its discontents

This Media and Defamation Bill was supposed to remove criminal libel at the heavy price of doubling civil libel damages. Incredibly, almost all criticism of the Bill at the time missed its mark by focussing on the compulsory registration of news outlets.

This matter was deliberately exaggerated by a host of Nationalist satellites who suddenly discovered the importance of freedom of speech and internet freedom, when a short search of their past positions would serve to discredit them completely.

Any serious analysis of the Bill would have revealed that the threat to freedom of speech was two-fold. Firstly, criminal libel was not being removed but strengthened and secondly the civil libel damages were being doubled.

In fact the Bill does not remove criminal libel (Article 252 of the Criminal Code), but amends it so that it now applies to defamation performed through ‘words, gestures, insults or other means’.  

Now, ‘other means’ clearly includes writing, so that criminal libel is still standing after this amendment. In addition the Bill is also going beyond the current law by including the word ‘insults’ in the forms which have to be considered when determining whether defamation has been committed.

But ‘insults’ are also ‘words’. This means that the Bill is attempting to put a special emphasis on insults as a way of committing defamation, potentially increasing the reach of criminal libel.

Face to face with Owen Bonnici

The Front Against Censorship had raised this issue when it met with Minister Owen Bonnici to discuss the Bill. The intention behind fumbled amendment seemed to be to remove criminal action when defamation took place through writing, but to keep it when this took place through the spoken word, even though this would lead to an inconsistent treatment of defamation.

The Front suggested that if cases of slander were to be tackled by the Police, then this should only apply to private quarrels of little importance where the intervention of the Police could be justified in the interest of guaranteeing public order. The Minister seemed to be open to this suggestion although we do not know whether amendments to this effect will be made.

On the matter of the doubling of civil libel damages no agreement could be reached, although the Minister showed his willingness to include a clause to the effect that the Court should also take into consideration the means of the person found guilty of defamation when deciding the amount of damages which should be awarded.

Although some argue that the damages for defamation should not depend on who commits the defamation but on the defamation itself, we do not agree with this position. It is important that  freedom of the speech does not become the exclusive privilege of well-financed media houses which can afford to absorb massive damages. Such a clause will help to protect media pluralism in the context of a 100% increase in civil libel damages.

What’s next? 

The Bill will soon be brought to committee stage where we shall have the opportunity to see which amendments the Minister will propose to it. There is no telling in advance how it is going to look given the large number of stakeholders on this question. If the Minister decides not to go ahead with doubling the damages for civil libel I am sure that he will have make many friends.

Ingram Bondin is a member of Front Against Censorship