Issue link: https://maltatoday.uberflip.com/i/1503368
6 maltatoday | SUNDAY • 9 JULY 2023 NEWS MATTHEW VELLA A private citizen unconnected to the world of art or comedy is among the four people charged by police for comments that al- legedly fall foul of the Electronic Misuse Act. The action against these four was initiated following a complaint filed by River of Love evangelical pastor Gor- don-John Manché. The Facebook commentor – who has requested anonym- ity – was charged by police together with satirist Matt Bo- nanno, specifically over a com- ment 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 car- pet bombed. Comedian Daniel Xuereb joked about Manché being 'Malta's biggest asshole' while taking a dig at the pas- tor's comments on anal sex, while theatremaker Sean Buha- giar 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 vexa- tious criminal complaints will also protect him, it is a remind- er that Labour's bid to consoli- date freedom of expression still leaves 'insult' criminalised un- der current rules. The legal move to grant ar- tistic 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 pub- lished 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 ex- pression in the arts – has the unfettered right to freedom of expression. As in Article 41 of the Consti- tution, and the ECHR, the right has its limitations: the protec- tion of reputations and others' freedoms, "as reasonably justi- fiable 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 war- ranted by provocation". The harsher Electronic Commu- nications Act (ECA) carries a €25,000 fine for "improper use" or threatening the commis- sioning 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 de- famatory 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 reputa- tion, rights and freedoms of others have always been inter- preted as impeding only free- dom of expression where it de- stroys someone's reputation, or where it incites hatred or tar- geted violence towards certain groups because of their iden- tity," Sammut said, saying the right is biased in favour of free- dom more than the sensitivity of those who take offence. "Why? Because it would be dangerous to empower some- one, especially someone who has some sort of power, who gets to tell you what is offen- sive, what is not, or how far you can get," Sammut said. Indeed the 1976 Handyside judgement in the European Court of Human Rights crys- tallised this freedom as a right that protects expressions that are favourable, pleasing, re- spectful, or educated, or de- cent, but also "the expressions that offend, shock, and dis- turb". "So long as there is no incite- ment to hatred or violence on the grounds of racial identity, sexual orientation, religion, etc., or lies which ruin the rep- utation of individuals, every human being has the funda- mental right to offend," Sam- mut said. "It's a right for every person, which is why it is a fun- damental human right, not on- ly the for the artist – of every human being when expressing themselves, not only in an ar- tistic, 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 crimi- nal offence... if you choose not to be polite or insulting, even if unjustified, then it will be soci- ety to judge you." Sammut said Sean Buhagiar, Matt Bonanno and comedian Daniel Xuereb not only have the right to call anyone "an ass- hole" in a satirical context, but said it was everybody's right to say it, in any context. "While this amendment is a step for- ward to protect artistic ex- pression, I think it does not do enough to guarantee that our laws are not considered uncon- stitutional and also in breach of the European Convention on Human Rights." Sammut indeed said it was In Handyside v. The United Kingdom, the European Court of Human Rights (ECHR) held that the right to freedom of expression, as provided for in Article 10 of the European Convention on Human Rights Protects not only expressions that are favourably received but also those that 'offend, shock or disturbance'. The European Court of Human Rights held that the confiscation of a book deemed to be obscene did not violate the right to freedom of expression. Richard Handyside purchased the British rights to a book that aimed to educate teenage readers about sex (including subsections on issues such as masturbation, pornography, homosexuality, abortion, etc) and was convicted of possessing obscene publications for gain under the Obscene Publications Act. The Court concluded that the Act's intent to protect minors, as well as its measured and precise application, met the qualifications for a restriction on free speech within a State's margin of appreciation to determine what was "necessary in a democratic society." This was one of the first freedom of expression cases considered by the Court, and it set a strong standard for the examination of these cases which is applied up until the present day. In particular, it established the principle that "freedom of expression… is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population." Facebook commentor is fourth person charged in Manché When in doubt, the rule is Handyside: Nationalist MP Mark Anthony Sammut says freedom of expression includes offence but it is not police's job to prosecute insults The Handyside judgement River of Love Pastor Gordon- John Manché has filed four police complaints against people who have ridiculed or joked about him and his church