Issue link: https://maltatoday.uberflip.com/i/788859
maltatoday, SUNDAY, 19 FEBRUARY 2017 12 News Press charges: a new defamation bill MATTHEW VELLA FOR the mainstream media and print establishment, the upshot of a new media and defamation bill that would supplant the Press Act, is the introduction of a mediation stage and preliminary hearing for court defamation cases. With libel damages mounting a real challenge to the Fourth Estate, the removal of criminal libel together with the preliminary hearing – a faster way for the plaintiffs and defendants to come to a resolution, even under pain of a €1,000 fine – would go a long way to protect journalism from the threats of vexatious and frivolous libels. The debate so far, has been noth- ing short of fiery. Chris Cardona's and Joe Gerada's precautionary warrants for some €46,000 in potential libel damages over Daphne Caruana Galizia's claims that the two men were wit- nessed inside a German brothel, prompted the Nationalist Party to present a private member's bill to exempt the Press Act from pre- cautionary warrants. The Labour government followed suit, finally taking the media and defamation bill off its shelf. But apart from removing precau- tionary warrants for those charged with defamation, the new Bill is also attempting to bring the online world at par with the print me- dia, the usual defendants in libel cases. Controversially, the Bill is also hiking up the maximum libel damages in civil cases, to €20,000, prompting such cases to be heard in the upper courts rather than in a Court of Magistrates. Proportionate? Probably this sop for the removal of criminal libel is anything but. Shifting the onus on plaintiffs Arguably the Bill is a step in the right direction for its proposal to introduce a preliminary hearing during which parties can either agree to come to a resolution, or allow the judge to determine the case summarily and force the de- fendant to publish an apology un- der pain of a €1,000 fine. Even the maximum damages are eventu- ally reduced to €7,000, if prior to the actual commencement of the proceedings, the defendant would have already apologised and pub- lished an unreserved correction of the defamatory article. However, the burden of proof remains squarely on the defendant and does not place a proportionate burden on the plaintiff. In various US states, there are several "privi- leges" that can get a defamation case dismissed without proceed- ing to trial, because plaintiffs have to prove they have a real basis to proceed with a challenge to some- body's freedom of expression. Even in the event that a prelimi- nary hearing does not achieve a resolution between the two parties, the eventual maximum €20,000 damages does little to reassure the general public that a defamation case achieves its aim. If ultimately, journalists and publishers stand to lose such large sums of money in a court case, this alone will serve as a chilling effect on the kind of information and news that will be pursued. Confidentiality of sources: a professional privilege? In this part of the law, there will be some considerable debate as to whether we have arrived at the closest definition of a journalist or not. The media bill proposes that only habitually full-time and part-time journalists, or those whose edi- tors and publishers are registered with the media registrar – whether print or online – will be entitled to claim confidentiality of sources as a defence in court. In the Press Act, confidentiality of sources is listed under the heading of "jour- nalistic freedoms" but specifically unconnected to the actual occupa- tion of the person. Now there are of course jour- nalists whose livelihood depends on journalism, but there are also those who in the course of their lives might carry out "an act of journalism", by becoming witness- es or reporters of an event in print or online or on Facebook – and both categories of person could end up being sued for defamation in a court of law. Now just as the freedom of ex- pression is not an absolute right, and carries its limitations, so does the protection of journalists' sources (which at law is not spe- cifically a right) carry limitations: that is, a court of law can order that the disclosure is necessary in a democratic society because of na- tional security, public safety or the prevention of a crime and to pro- tect the interests of justice. What is unclear is whether, in a court of law, a defendant could be prevented from keeping sources confidential even if they are not journalists (they might be casual bloggers stumbling on a scoop, for example). The European Court of Human Rights says (Goodwin vs UK) that national courts have a margin of appreciation in determining the necessity of ordering the disclo- sure of sources, and whether this is proportionate to the legitimate aim pursued. Ultimately, the ECHR would seek to tip the bal- ance in favour of the interest of a democratic society in securing a free press. Can we argue that bloggers, who might not depend on journalism for their livelihood, but who might produce a report, factually based on sources, should not be allowed to avail themselves of the same defence? Equally, we could argue that even their sources could be deterred from assisting new me- dia or other journalists not part of "registered" legacy media. In 2011, the Council of Europe's parliamentary assembly – whose resolutions also serve to guide in part the ECHR's interpretation of Convention rights – said that the right of journalists not to disclose their sources of information is a "professional privilege", intended to encourage sources to provide journalists with important infor- mation which they would not give without a commitment to confi- dentiality. "The same relationship of trust does not exist with regard to non-journalists, such as indi- viduals with their own website or web blog. Therefore, non-journal- ists cannot benefit from the right of journalists not to reveal their sources." So how should journalists be rec- ognised? Registration misinterpretation The Press Act already obliges editors and publishers to register their identities with the Depart- ment of Information. The new media bill is now proposing that editors of news websites, or web- sites "related to news and current affairs" also register their names with the media registrar. The debate on this registration clause is already conflated with misinterpretation. Critics are claiming that this will force blog- gers to register their websites, an interpretation mainly pushed by the Malta IT Law Association (MITLA) and further reinforced by the Nationalist Party. Other lawyers who have spoken out on this provision say it changes little from the current practice to regis- ter editors of print titles. IT law association against registration The MITLA says registration of website editors would be a direct curtailment to freedom of speech online. "The Internet is a bastion of activity and free expression – registration will put this under government control," MITLA claims – although this hardly could be said of print editors who are registered with the DOI. MITLA insists that printed newspapers could not be placed at par with online publications "without any appreciation of the realities that technology and the Internet, as well as the rights and freedoms associated with their use." It has also said the minister retains power in the media Bill to make provisions for the removal of online content following a court decision, without a restriction found in UK law that a draft of the instrument is approved by parliamentary resolution. MITLA said MPs should discuss the Digital Rights Bill, amending the Constitution, presented in 2014 in order to guarantee that the proposed rights of right to informational access, informational freedom and digital informational self- determination find their place as enforceable rights in our Constitution. Tell the truth, always... Kirk Douglas in the 1951 movie Ace In The Hole