Facebook commentor is fourth person charged in Gordon-John Manché fallout

A private citizen unconnected to the world of art or comedy is among the four people charged by police for comments that allegedly fall foul of the Electronic Misuse Act.

The action against these four was initiated following a complaint filed by River of Love evangelical pastor Gordon-John Manché.

The Facebook commentor – who has requested anonymity – was charged by police together with satirist Matt Bonanno, specifically over a comment lampooning Manché that tied in with Bonanno’s joke on his Facebook page Bis-Serjetà about “carpet-bombing” River of Love.

Bonanno had jokingly said on Facebook that Manché’s River of Love congregation should relocate to Bugibba and be carpet bombed. Comedian Daniel Xuereb joked about Manché being ‘Malta’s biggest asshole’ while taking a dig at the pastor’s comments on anal sex, while theatremaker Sean Buhagiar repeated both comments.

While the fourth person charged told MaltaToday that he believed the amendments moved in the House to protect the arts and satire from vexatious criminal complaints will also protect him, it is a reminder that Labour’s bid to consolidate freedom of expression still leaves ‘insult’ criminalised under current rules.

The legal move to grant artistic practitioners a protected category of free speech in fact could risk consolidating the criminalisation of insults that is allowed under the Criminal Code, as well as through the Electronic Communications Act through ‘misuse’ of digital devices when the insult is published on social media.

Only Nationalist MP Mark Anthony Sammut has so far correctly observed that the protection of free speech in Malta, a constitutional right that is bolstered by protection in the European Convention for Human Rights, means every citizen – beyond protected expression in the arts – has the unfettered right to freedom of expression.

As in Article 41 of the Constitution, and the ECHR, the right has its limitations: the protection of reputations and others’ freedoms, “as reasonably justifiable in a democratic society”.

This expectation is protected by the Media and Defamation Act, which allows for plaintiffs to file civil cases on libel and slander.

But while criminal libel was removed in 2018, the Criminal Code still criminalises insults that “go beyond the limit warranted by provocation”. The harsher Electronic Communications Act (ECA) carries a €25,000 fine for “improper use” or threatening the commissioning of a crime, which since Bonanno’s ‘carpet-bombing’ jibe at Manché, has allowed police a free hand to prosecute.

Sammut, speaking in the House this week, spoke of the contradiction between a defamatory statement committed electronically – that would turn into a civil cause for the courts – and an ‘insult’ that makes its owner liable to a €25,000 fine under the ECA.

He warned against attempting to limit the wide berth given by European case-law on freedom of expression.

“This limitation to reputation, rights and freedoms of others have always been interpreted as impeding only freedom of expression where it destroys someone’s reputation, or where it incites hatred or targeted violence towards certain groups because of their identity,” Sammut said, saying the right is biased in favour of freedom more than the sensitivity of those who take offence.

“Why? Because it would be dangerous to empower someone, especially someone who has some sort of power, who gets to tell you what is offensive, what is not, or how far you can get,” Sammut said.

Indeed the 1976 Handyside judgement in the European Court of Human Rights crystallised this freedom as a right that protects expressions that are favourable, pleasing, respectful, or educated, or decent, but also “the expressions that offend, shock, and disturb”.

“So long as there is no incitement to hatred or violence on the grounds of racial identity, sexual orientation, religion, etc., or lies which ruin the reputation of individuals, every human being has the fundamental right to offend,” Sammut said. “It’s a right for every person, which is why it is a fundamental human right, not only the for the artist – of every human being when expressing themselves, not only in an artistic, comical or satirical way.”

Sammut said that while he was not encouraging people to insult others, he reminded the House that it was not the job of the police to prosecute insults. “Insults should not be a criminal offence... if you choose not to be polite or insulting, even if unjustified, then it will be society to judge you.”

Sammut said Sean Buhagiar, Matt Bonanno and comedian Daniel Xuereb not only have the right to call anyone “an asshole” in a satirical context, but said it was everybody’s right to say it, in any context. “While this amendment is a step forward to protect artistic expression, I think it does not do enough to guarantee that our laws are not considered unconstitutional and also in breach of the European Convention on Human Rights.”

Sammut indeed said it was insult that should be removed from the Criminal Code, mirroring the judgements of the European Court that show insult is not a criminal offence.

“Whoever feels offended, needs to learn to deal with it. As simple as that. If you feel that your reputation has been damaged, you have the right to file for defamation... but there is no need for the Court to first establish that ‘unusual’ comments are being made in a context of artistic expression, so as not to find blame. On the contrary, such cases should not even reach the Courts.”

Sammut in fact pointed out that it was the police who should not have displayed an obligation to Manché’s complaint. “The police should have clear guidelines not to prosecute cases where there is no abuse. If the plaintiff feels short-changed, they will be able to defend their decision in court under challenge... otherwise, instead of protecting the right to freedom of expression as guaranteed by the European Convention, they are ending up as a tool in the hands of those who want to stifle that right.”