Explainer | The proposed media laws and Constitutional amendments presented by the State

Constitutional protection

The proposed articles in the Constitution are:

1. Recognition of journalism’s role “The State recognises the freedom of the media and the role of the media as a public watchdog together with the right to exercise free journalism as fundamental elements of democracy. The State shall protect and promote freedom of the media including by providing for the protection of journalists and of their sources.”

2. Freedom of expression Article 41(a)(1) will now guarantee freedom of expression as the “freedom of any person to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

(2) “The freedom and pluralism of the media and the importance of the role journalists shall be respected.”

(b)(2A)(a) “The exercise of the freedoms... may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and independence of the judiciary.”

(4)
 This article shall not be interpreted as protecting the expression of hatred such as on the basis of nationality, race, gender or religion which, taking into consideration the circumstances in which it is done, constitutes incitement to discrimination, hostility or violence.”

3. Right for privacy

It is uncertain why the protection of privacy and family life is being included in the Constitution – and it is an overlong amendment,

38. (1) “Everyone has the right to respect for his private and family life, home and communications.

(2) Except with his own consent or by way of parental discipline, no person shall be subjected to the search of his person or his property or the entry by others on his premises.

(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this article to the extent that the law in question makes provision:

(a) that is reasonably required in the interest of defence, public safety, public order, public morality or decency, public health, town and country planning, the development and utilisation of mineral resources, or the development and utilisation of any property in such a manner as to promote the public benefit;

(b) that is reasonably required for the purpose of promoting the rights or freedoms of other persons

(c) that authorises a department of the Government of Malta, or a local government authority, or a body corporate established by law for a public purpose, to enter on the premises of any person in order to inspect those premises or anything thereon for the purpose of any tax, rate or due or in order to carry out work connected with any property or installation which is lawfully on those premises and which belongs to that Government, that authority, or that body corporate, as the case may be; or

(d) that authorises, for the purpose of enforcing a judgment or order of a court, the search of any person or property by order of a court or entry upon any premises by such order, or that is necessary for the purpose of preventing or detecting criminal offences,

and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.".

Aggravation of crimes against journalists

Article 221 states that bodily harm that is slight, grievous, or where the effect is considered both physically and morally, of small consequence to the injured party, carries imprisonment for a term not exceeding three months, and increased by one degree when the harm is committed against “the person of whosoever was a journalist, or had a role in the media and the offence was committed because of that person exercising of having exercised his functions.”

Defamation lawsuits

Tariffs: As defendants, journalists will not have to pay the court tariffs to file a sworn reply to a court case, but the collection of the fees will still take place “in accordance with the judgement of the court upon the termination of the lawsuit” – which means, a court magistrate will decide whether the tariffs are to be paid after all.

Precautionary warrants: The Code of Civil Procedure will be amended so that precautionary warrants “many not be issued in order to secure rights or claims against any person for damages for libel or for any other defamation under any law.”

Death of the author of editor

When an author or an editor dies during a defamation lawsuit, the court may still decide the cars on the merits but not award any damages against the heirs of the deceased. It will still however decided on the costs, and in this case, it will be the publisher responsible for the broadcasting medium who suffers the costs; but the court can order the discontinuance of the proceedings “when it considers that after the death of the author or editor it will not be possible to establish legal responsibility for defamation in the absence of the deceased author or editor.”

This effectively still leaves media owners unconnected to their journalists’ sources suffering the consequences of lawsuits; and has no remedy for ‘publishers’ who are effectively digital giants hosting self-published journalists.

Anti-SLAPP

This will be the most controversial of legal proposals.

1.     The Court will decide whether to discontinue the hearing of a case if, after hearing the parties and any necessary evidence, “it is satisfied that it has resulted that the action is manifestly unfounded.”

2.     When such demands are made, the defendants will have to present prima facie proof showing the action is manifestly unfounded, and plaintiffs will have to prove the contrary.

3.     If execution of a foreign court judgement (defamation/SLAPP) is sought in Malta against somebody domiciled in Malta (ex. payment of damages for defamation) the Court will, as a principle, consider if (i) the action giving rise to the judgement was substantially based on claims related to Malta (ii) that the action could have been instituted in Malta but was instead instituted elsewhere to strategically create unwarranted financial burden on the journalist and discourage public participation on a matter of public interest; and then proceed to limit execution of the judgement “in its discretion and depending on the circumstances of the case” to the amount the Court considers would be due in damages had the case been instituted in Malta.

This means, that SLAPPs could still be enforceable in Malta by discretion of the court magistrate, and with damages limited to the maximum allowed by the Media and Defamation Act.

4.     The Court may also refuse the execution in Malta of a judgement “if it considers that the execution of that judgement would be violating the right to freedom of expression as protected in the legal system of Malta.”

Committee for the Recommendation of Measures for the Protection of Journalists, Other Media Actors and Persons in Public Life

This new committee will be composed of: the permanent secretary in the ministry for security (home affairs); the Commissioner of Police; head of the Malta Security Service; Armed Forces of Malta commander.

This committee, funded by the ministry, will “act on their own independent judgement and shall take into consideration the importance of protecting the democratic way of life as well as the resources and demands of the public administration and the principle of proportionality.”

Their functions will be to:

(i) Respond to real and immediate risks of acts of violence against journalists, media actors and persons in public life;
(ii) Decide upon matters to manage these risks;
(iii) Draw up a security plan for threat assessments, risks and vulnerability, easily warning system and rapid responses;
(iv) Provide “the necessary protection” for journalists, media actors and persons in public life.