Defamation acquittal overturned despite successful defence of honest opinion

The Court of Appeal has overturned a magistrate’s judgement acquitting Mediatoday director and columnist Saviour Balzan, of libel against former Labour minister Joseph Brincat.

The Chief Justice accorded Brincat €1,000 in moral damages over an article in which Balzan referenced Brincat’s arrest in Italy back in 1987.

Brincat had sued Balzan for libel in 2019, claiming his opinion piece “The Wrong Fight On Good Governance,” claiming that the column suggested he had been cleared of criminal charges in Italy as a result of favouritism.

Balzan testified during the libel case, saying he was referring to press reports from 1987 that has clearly detailed the role of then deputy-PM and foreign minister Guido de Marco, to intervene with the Italian authorities to release Brincat from prison.

The Court of Magistrates in fact dismissed Brincat’s claim in September 2021, given that Brincat had been indeed arrested in Italy and that, in 1994, his arrest was later ruled to be in breach of his rights. “All this does not change or take anything away from the fact that the plaintiff was effectively arrested in Italy on suspicion of committing a criminal offence and had spent several weeks detained in prison there,” Magistrate Rachel Montebello had said in her judgement acquitting Balzan.

The Appeals Court, presided by Chief Justice Mark Chetcuti, too pointed out that Balzan had not insinuated that Brincat was convicted by the Italian courts, but had made reference to the great interest generated among the public by the story of the arrest.

The judge, however, noted that Balzan’s article had not quoted directly from the 1987 reports in the long-defunct Alternattiva newspaper; “neither was evidence exhibited showing that the defendant had effectively provided access to the ‘Alternattiva’ article, despite having offered to do so.”

The judge remarked that there were no declarations in Balzan’s article to the effect that Brincat had been convicted of, or should have been convicted of, committing a crime, had it not been for outside intervention.

“As already established [the court] understands that had it not been for the political intervention which took place, the plaintiff who was arrested and charged, could have ended up spending several years in prison in Italy.

“It requires quite some stretching of the imagination to understand this as a declaration that the plaintiff had effectively committed the crime, or had been guilty of the charges mentioned, but had been freed thanks to the political intervention of Dr. Guido de Marco.

“Nowhere is it said or understood that ‘several years behind bars’ is a reference to an effective prison sentence inflicted after a declaration of guilt.”

In his testimony, Balzan had told the court that Brincat’s release had been so clearly politically motivated, that his father-in-law Dr John Buttigieg had not only publicly and directly thanked De Marco, but had said that had it not been for his help and that of the government, Brincat would have spent months in custody.

Brincat had claimed defamation by accusing Balzan of “a personal attack that had not been provoked by something which the journalist should have been hurt by.”

The lawyer insisted that the article had been published to “try and destroy his good reputation,” pointing out that Balzan had also invited readers to email him if they wanted a copy of the 1987 Alternattiva story.

Balzan’s lawyers argued that the story constituted ‘fair comment’, a statutory defence now protected in Malta’s Media and Defamation Act as the concept of “honest opinion”, similar to UK law, said the judge.

The court agreed, stating that “it is to be said, immediately and without hesitation, that the declarations impugned by the plaintiff about the episode… are declarations of opinion and therefore satisfy the requisites [of the law].”

And he also agreed with the defence’s argument that Brincat was a person in the public eye, as defined by the law, and therefore subject to greater scrutiny, as well as an MFSA governor.

“The publication concerns precisely the issue of good governance, which formed the merits of a judicial letter filed by the plaintiff against the same Authority in protest against a golden handshake which according to the plaintiff had been made illegally and through lack of good governance on the part of the public administration.”

But the judge then went on to say that, while the outcome of Brincat’s appeal in the Court of Scalea was pending at the time of the 1989 Alternattiva story, the fact that the case was over should have been self-evident in 2019. 

Although the requisites for a successful defence of honest opinion were all present in this case, noted the Chief Justice, the defendant ought to have published a clarification after Brincat alerted him to the fact that the Italian courts had eventually found him not guilty, and the European Court of Human Rights had subsequently declared Brincat’s detention to have been in breach of his rights in 1998.

The defendant’s refusal to publish this clarification was a confirmation of ill-intent ,and showed that he had wanted to insinuate a version of events which had been contradicted by judicial pronouncements, said the judge. 

“Balzan had every right to express his opinion on the charges brought against Brincat and their effects on his credibility in matters of good government…  but he had no right to imply that political machinations were behind his release when he could have easily found out that the former minister had been acquitted by the Italian courts,” the judge said.