Judge finds PN's rights breached by the national broadcaster

A judge has slammed the "winner takes all" election mentality displayed by both political parties as he ruled that Malta’s public broadcaster PBS had breached the Constitution by failing to impartially report on a matter of political controversy.

The judge also ruled that the Broadcasting Authority failed to act in a timely manner, in a constitutional case filed by the Nationalist Party before last March’s General Election.

The PN had filed the case against the Broadcasting Authority, Public Broadcasting Services Ltd, Minister Carmelo Abela and the State Advocate earlier this year, complaining of pro-government bias in the public broadcaster’s programming, which translated into little or no coverage of public statements made by the Leader of the Opposition. PBS had also defied an order by the BA, in breach of the Constitution and the law regulating broadcast media, said the plaintiff.

It was only three months later, after a second complaint filed by the PN, that the BA found PBS guilty of having done so and imposed a fine.

In his decision, handed down early on Thursday morning, Mr. Justice Grazio Mercieca ruled that “pluralism is an important factor in the right to freedom of expression. “The State does not only have the negative obligation, not to interfere or stifle freedom of expression, but it also has the positive obligation to create a legislative and administrative framework which guarantees effective pluralism.”

The judge pointed out that as the State Broadcaster, PBS, had the largest audience of all media outlets in Malta, which reached its maximum during daily news bulletins.

He disagreed with the defendants’ argument that insisted that the issue of balance in broadcasting was “separate and distinct from the fundamental rights of the plaintiff, which remained unaffected by balance or imbalance in broadcasting.”

Whilst agreeing that these two elements were conceptually different, the court said it “could not subscribe to the deduction that a breach of the one didn’t translate into a breach of the other, when the imbalance was created by the State itself,” adding that this concept was also embraced by several judgements by the European Court of Human Rights.

The judge noted that the plaintiff was not just asking to be allowed to have his voice heard, but to be given the right of reply, “a right which the State should protect as part of its positive obligations…”

“At this stage, this court cannot fail to make a comment of a general nature in an attempt - even if it remains a solitary voice in the desert - to stop the oppression of the right to freedom of expression. It seems to have become an unwritten convention in Maltese politics that the winner takes all. The winner uses the power of incumbency to its limits, including broadcast media. The loser calls it shameful and every now and then protests, also through the courts. Then, when the page is turned [and the party in government changes], now victorious, it falls into shame by itself committing [the same] abuses.

“And so the story repeats itself. This game of cat and mouse must be eradicated once and for all.”

The judge also observed that the court was not in a position to provide a full remedy, “because the right to reply, if given after time has passed, has little to no effect.”

The judge pointed out that his court had acted expediently, urgently fixing dates for sittings when the case had been filed and that after the court communicated the dates to the parties, the election date was announced. 

“Because of the very limited timeframe, even this court was not in a position to decide the case before the election. If there was an imbalance against the plaintiff, it could not obtain any remedy before the election, which was the time most fitting for a remedy.” 

Today, the court could not order that the plaintiff party be put back in the position it was in before the behaviour it was complaining of began, said the court, as this could only have been achieved by addressing the imbalance immediately.

The BA and PBS were each ordered to pay €1,500 in non-pecuniary damages to the plaintiff.

PN secretary-general Michael Piccinino as well as lawyers Paul Borg Olivier and Francis Zammit Dimech, represented the PN in the proceedings.

Professor Ian Refalo appeared for the BA, and lawyers Edward Gatt and Mark Vassallo appeared for PBS.

READ ALSO: Bernard Grech calls PBS ‘Robert Abela’s TV’, calls for effective monitoring by Broadcasting Authority