OSCE analysis of Malta’s upcoming media law: the digested read

The OSCE Representative on Freedom of the Media Harlem Désir has welcomed changes made to Malta’s Media and Defamation Bill, but at the same time, encourages improvements in several fields.

The analysis, prepared by renowned independent media freedom expert Dr. Joan Barata Mir, is the second one commissioned by the Office on the Bill.

First up, some recommendations on the legal definitions

• Keep just one single or unified notion of “editor”, focusing on the idea of editorial or content control, and thus eliminate the notion of “publisher”.
• Introduce a general and comprehensive notion of media, referring to all forms of dissemination of ideas, information and opinions on matters of public interest to the general or a non-defined portion of the public, under the editorial control of an “editor’. This notion should be based on the principle of technological neutrality.
• Eliminate the notion of “printed matters” and introduce a single notion of “written media”, regardless of the content being distributed offline or via online platforms.
• Finally, with reference to the notions of “slander”, “libel”, and “defamation”, it is worth noting that the most recent version of the draft does include a definition of the latter, which was originally missing.

Removal of criminal libel, naturally welcomed

“It has to be particularly outlined that this new text introduces quite a remarkable change within the Maltese legal system, as it protects journalists and media actors from possible criminal actions on the grounds of slander, libel or defamation. This means that with the adoption of the Act, these issues will be exclusively handled by civil courts, which will only be able to adopt compensatory measures, particularly the awarding of financial sums. This change must be particularly welcomed.”

No defamation of President

The new draft has completely eliminated the provisions regarding the crime of contempt to the President of Malta. New amendments to the Criminal Code guarantee that excitement to hatred or contempt against the President or the Government shall be punishable only when committed by violent means, as well as repealing article 75 of the Criminal Code, which establishes a specific punishment of “falsely imputing misconduct in administering the Government  of Malta to a person employed or concerned in the administration of the Government of Malta”.

Government should consider reversing burden of proof in certain cases

In defamation law, the two main options for defence are either to put the burden of proof on the claimant, who should be required to show that the imputations are false in order to destroy a legal presumption of truth, or to impose on the defendant the burden to prove that the allegations made are true. In line with other European legal systems, the draft has selected the second option.

The European Court of Human Rights does still not have a completely clear approach to this matter. In some cases, it said defendants should prove the facts, as a justified restriction in the interests of the protection of the reputation and rights of the plaintiffs (McVicar v. United Kingdom, 2002); but in others, it favoured a more balanced approach, because providing proof would be an excessive and very complex burden for the defendant (Steel and Morris  UK, 2005).

It is therefore recommended that the draft includes a more balanced approach with regards to the defence of truth, introducing the possibility for the Court, in some cases, to reverse the burden of proof.

Need for clarity on public figures

Article 4 says the defences of truth and honest opinion shall only apply where the person aggrieved is a public figure and that “the truth of the matters charged may not be enquired into if such matters refer to the private life of the claimant and the facts alleged have no significant bearing on the exercise of that person’s public functions”.

The wording of these provisions is still not completely satisfactory. The draft needs to clearly state that in matters of public interest, the defences of truth and honest opinion can be raised when the plaintiffs are not public figures, but involved in matters of public interest, in line with the public interest defence established in paragraph 4 of article 4.

Libel damages are capped

Article 11 establishes additional criteria to be considered by the Court when assessing the sum to be awarded to the claimant, including the gravity or extent of the defamation, the due diligence exercised by the defendant before publishing the defamatory content, and the offer by the defendant to make an apology or to publish a clarification. “All these measures should in principle be welcomed, as they will definitely meet the criteria of the principles of necessity and proportionality.”

The current version of the draft includes provisions that contemplate the need for the Court to take into account the economic capacity and the impact that the imposition of certain compensation may cause on a media outlet or on any other media actor (new paragraph 4 of article 11). “This is a relevant improvement, in line with the recommendations made by the previous Analysis in February 2017. It also needs to be welcomed the fact that the general cap for libel damages has been reduced from 20.000 euro to 11.640 euro (from €10,000 to €5,000 in actions for slander by way of moral damages).”

Specific defences for website editors

Article 12 establishes a series of specific defences for editors of websites, limiting the cases when they may not be held liable for the defamatory content posted on their sites. “It has to be noted that the provisions included in this area look particularly balanced and limit the liability of editors to cases where it can be proved that the editor had knowledge of the nature of the statements and did not respond with due diligence.”

However, the law allows a “minister” to “adopt regulations regarding the action required to be taken by an editor of a website in response to a notice of complaint.” Such rules “shall be made after a consultation process and (…) shall be approved by resolution of the House of Representatives before they come into force”.

“This new version represents a clear improvement vis-à-vis the original draft and therefore needs to be welcomed.

“It is recommended to also include some criteria which ought to be taken into account when dealing with a notice of complaint in terms of balance between the possible defamatory nature of the statement and the public interest in its publication, as well as possible limitations in terms of time and scope of such measures.”

Defamation of dead persons: limits must be introduced

Article 17 allows action for defamation “in respect of the memory of a deceased person” provided that he/she was the parent, sibling, or child of the plaintiff and the statement is made within 10 years since his/her death.

OSCE says that fierce attacks against the reputation of recently deceased persons may have a strong effect on the reputation or the right to privacy or even engage the right not to be subjected to inhuman or degrading treatment of their families. For this reason, the ECtHR has accepted only in a very limited manner and in specific cases to protect the reputation of non-living person.

“It was already recommended in the previous Analysis to introduce some additional restrictions… For this reason, the deletion, in the current version, of the following paragraph cannot be welcomed: “(p)rovided further that the claimant must show that his own reputation was seriously harmed or is likely to be seriously harmed by the statement or that the statement is such as would reasonably cause serious moral suffering to claimant”. Despite the fact that the wording “is likely to be seriously harmed by the statement” was not particularly satisfactory, this paragraph was specifically aimed at introducing the mentioned restrictions.”

Registration restrictions should be removed

​Article 19 establishes that “(a)ny person who is resident in Malta and who has legal capacity may be an editor” but the OSCE says that this should be removed to allow anyone outside of Malta to be editor. “This restriction to the right to freedom of expression is not justified in the law and do not seem to pursue any pressing social need or relevant necessity within a democratic society.”

Article 19 also establishes that editors or publishers of a newspaper may submit to the Media Registrar a declaration containing information on their identity and the content they disseminate. “It is welcomed that the current version of the draft does not establish such registration as an obligation and that the references to the imposition of sanctions to those whom do not comply have been deleted.”

Media registrar should be trade body

The Council of Europe reiterates the need for an independent body to register media workers, something MaltaToday has regularly advanced in conversations with IGM, and members of government and the Opposition.

“Ideally, and in line with comparative best practices, such tasks would be more suitably performed by an independent body not subject to political instructions. However, it is to be welcomed as a positive improvement the fact that the latest version of the draft establishes that a regulation initiated by the Prime Minister and approved by the House of Representatives after a consultation process will provide ‘that the functions of Media Registrar shall be fulfilled by such person or organization as may in his opinion duly represent journalists and publishers’, the possibility for the Registrar to ‘perform other functions in the field of training, analysis of developments in the media and the  fostering of alternative and accessible means of dispute resolution’. It is clear that these new provisions introduce more clarity to the regulation of this figure.”

Confidentiality of sources has universal protection

Article 22, which now applies the protection of confidentiality of sources universally and not just to registered media or who “habitually exercises the profession”, is now “in line with international standards.”

More information on protection of sources in this opinion by the UN Rapporteur on Freedom of Expression and Freedom of Opinion