Issue link: https://maltatoday.uberflip.com/i/788859
maltatoday, SUNDAY, 19 FEBRUARY 2017 News 13 bill ignites the debate on journalism But what does registration serve for? In the courts of law, the DOI is usually employed to confirm the responsibility of an editor or publisher that is being sued for defamation by verify- ing the defendant's name with its own register. In reality, even if a blogger is not registered with the DOI, they can still be physically brought to court if they are identifiable in the first place, as happened with Daphne Caruana Galizia in her numer- ous court libels, and even with those sued for libel for com- ments they placed on Facebook or for letters they had pub- lished. So registration seems to fulfill no meaningful purpose other than to establish titular responsibility. Arguably, this provision in the media bill is creating confu- sion, justifiably, especially with the vague definition it has given to "website" and the €1,000 fine it contemplates for those who do not register themselves as editors (bloggers who single- handedly pen their opinions on their personal blog would ask themselves whether they are their own editors). So we should ask ourselves whether registration is neces- sary, and whether it can be reformed to a more fruitful exercise. A bone of contention for the established press is the way the DOI issues press cards to non-journalists on the mere recommendation of an editor or publisher: a notorious exam- ple is the temporary press card issued to Nationalist MP Jeffrey Pullicino Orlando during the 2008 election so that he could face down Alfred Sant during a televised debate for the Broad- casting Authority. Surely it is this practice that has to change. What is needed is to intro- duce the Institute of Maltese Journalists as a vetting partner, to assess the various levels of journalists: those who are on a full-time or part-time ba- sis with a media organisation, those who are freelancers but depend on journalism as their main income, and bloggers, columnists or PR workers who might have other full-time jobs and do not depend on journal- ism for their livelihood. In each of these cases, a press card – often used in Malta solely for access to official events and institutions such as the House of Representatives – would de- termine the level of access than can be enjoyed by the journalist according to this status. This kind of registration is of course unconnected to the me- dia bill's attempt to establish responsibility for defamation for the online world. But in at- tempting to regulate the fluid and often un-categorisable in- ternet, the law could end up punishing harmless actors. Un- doubtedly, this part of the law needs a serious rethink. Defaming the dead Much will also be said about the media bill's introduction of a controversial right for in- jured parties to bring defama- tion proceedings when they feel their dead relatives have been defamed. The bill contro- versially would allow this for those heirs of deceased persons against whom the defamatory statement was made within 10 years of the death of the person allegedly defamed. Ironically, while the media bill introduces no obligation for plaintiffs to prove to a court they have a prima facie case for defamation – where they would have to prove that defamation has indeed occurred – on de- ceased persons, heirs would have to show that their own reputation also was harmed or has caused moral suffering. As the saying goes, "you can't libel the dead". So should that mean that one could say any- thing one wanted about some- one who had died? In one case in 1994, the son of the late La- bour prime minister Sir Paul Boffa had brought defamation proceedings against a newspa- per columnist, John A. Mizzi, who had opined that Boffa had personally shown an interest in seeing part of the Xemxija coastline built up. The state- ment itself was not based on provable fact, but Sir Paul had also been dead for over 30 years. In 2014, the European Court of Human Rights recognised this right somewhat. The case involved Vladlen Putistin, whose father was involved in the so-called Death Match in the second world war, when a team of German military play- ers took on former professional footballers from Dynamo Kiev and Lokomotiv Kiev in 1942. The match became notorious because it was reported that some Soviet players were ex- ecuted after they beat the Ger- mans. The story was the inspi- ration for the 1981 film Escape to Victory, starring Michael Caine and Sylvester Stallone. Putistin, whose father played in the Death Match, took a claim to the ECHR over a report of the match that suggested his late father was a Nazi collabo- rator. The court rejected his claim that the report breached his right to a private and family life (Article 8), but only because he and his father were not sig- nificantly identified in the re- port – in theory it said he could have succeeded in a claim on this basis. The ECHR held that applicant's rights were "mar- ginally affected and only in an indirect manner", but they did not discount in theory the po- tential for a claim on this basis to succeed. Generally speaking, a journal- ist sued for the defamation of a dead person would have to employ truth as the absolute defence to a defamation claim. The more serious or malicious the defamatory publications are, the more difficult it is for the defendant to vindicate them. But in the UK, an attempt was made to insert a provision in the Defamation Act 2013 al- lowing libel actions by relatives of the dead, but it was defeated. The Maltese bill now would provide this kind of protection for the relatives of dead and usually controversial figures. Those watching how the me- dia bill will evolve over the next months will probably be inter- ested to gauge whether there is indeed a public appetite for this kind of defamation claim. The media will undoubtedly oppose such a gratuitous allowance. mvella@mediatoday.com.mt New definitions New or updated definitions have been added for author, broadcast, defamation (libel and slander), editor, printed words – which now include visual images that can be heard, perceived or reproduced and uploaded on a website – publication, and website, which now is defined as "any web-based service relating to news or current affairs that operates from Malta or in respect of which editorial decisions are taken in Malta." What constitutes libel? Defamation must "cause serious harm or are likely to seriously harm the reputation" of someone who makes the claim. Gone are the Press Act's provisions for "obscene libel" (public morals and decency), malicious news that "alarms" public opinion or disturbs the peace and creates "commotion among certain classes of people". Criminal libel will be abolished but criminal cases ongoing when the new law comes into force, will still proceed, and civil cases will also proceed under the old fines if they were beyond their second hearing. Mediation before court When an action for defamation is filed, the Court will appoint a preliminary hearing within 20 days. During this hearing, the Court will decide whether it can decide summarily or allow the parties to reach an agreement trough an apology, with a maximum possible fine of €1,000. In assessing the sum, the court will consider the gravity and extent of the defamation, whether the defendant exercised due diligence before publishing the defamatory matter, and whether the defendant made or offered an apology or public a clarification. Apology before proceedings If the defendant provided an apology or unreserved correction before the filing of the defamation case, moral damages for any ensuing court case will not be more than €7,000. Higher moral damages in court defamation cases The new moral damages in a court of law for defamation will now climb to €20,000 over the current €11,000. An editor who refuses to publish a right of reply is liable to a €2,000 fine. Incitement against President: fines increased Under the Press Act, incitement to take away the life of the President is liable to a nine-year prison term and €1,164 fine: this has been increased to €5,000. Defending oneself against a libel claim Defendants will have to show that what they said or wrote "is substantially true" and even in cases where other statements they made were not "substantially true", the defence still stands if such statements do not seriously harm the claimant's reputation. Honest opinion is defined as a statement of opinion, for which an honest person could have held such an opinion on the basis of "any fact existing at the time when the statement was published, and anything asserted to be a fact in a privileged statement published before." Has a privacy loophole been introduced? Like the Press Act, a public person retains the definitions attributed in Article 12 – public officers, candidates for public officer, political activists, those in a profession, trade or art, those in a position of trust. In the Press Act, the truth of the matters charged "may not be enquired into if such matters refer to the domestic life of the aggrieved party". In the new bill, this has been changed to matters that "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" – unless the public interest element is proved in court. Protection of sources The Press Act safeguards the confidentiality of sources, although this is not an absolute right and has its own limitations in serious national interest cases. Under the new media bill, the protection of sources will only apply in the case of editors, publishers, broadcasting services or websites registered with the media registrar and then only if the author habitually exercises the profession of journalist on a full- time or part-time basis. This is perhaps the closest the law gets to a definition of a media worker in terms of the protection of sources. Removal of precautionary warrants The new media bill removes the power to issue precautionary warrants against any person for damages for libel or defamation. Defamation of deceased persons The new bill introduced an action for defamation of deceased persons if the defamatory statement is made within 10 years of their death and the action is filed by a parent, sibling, child or heir who must show that their "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." Comment boards on websites Editors can defend themselves from libel from comments if they show they are not persons who posted the statement on the website. Such a defence is defeated if claimants gave a notice to the editor on the statement, and the editor failed to respond to the complaint. Editors who moderate the statements can still avail themselves of this defence. Removal order A court that gives a decision on a defamation case can order the operator or editor of a website to remove the statement that is defamatory, or stop the distribution of material containing the statement. The Media and Defamation Bill In attempting to regulate the fluid and often un- categorisable internet, the law could end up punishing harmless actors. Undoubtedly, this part of the law needs a serious rethink