Issue link: https://maltatoday.uberflip.com/i/791658
maltatoday, SUNDAY, 26 FEBRUARY 2017 2 MATTHEW VELLA AN insult or slur will re- main a costly endeavour for anyone who employs offence in an argument or protest – their targets will remain empowered by the Criminal Code to file a police com- plaint and seek redress in a court of law. It is this part of Article 252 in the Criminal Code that will stay in force despite the government's claim that it is empowering freedom of ex- pression by removing crimi- nal libel. Article 252 says that any- one who damages the repu- tation of a person by words, gestures, or by writing or drawing, is liable to a maxi- mum three-month impris- onment or a fine. Under the proposed media bill, the law proposes to re- move "writing or drawing" – so as to repeal criminal libel – but to substitute this by "insults or in any other matter". Justice minister Owen Bon- nici has confirmed that un- der the proposed law, which will reform the Press Act, which also regulates defa- mation proceedings in civil claims, the removal of crimi- nal libel will strictly refer to the offence specific to the press. "The new Media and Def- amation Act will remove criminal libel from our stat- ute books. Offences under general criminal law, which are applicable to everyone, are not press offences. One cannot remove ordinary of- fences against the person, such as the one preventing, for instance, two persons from getting involved in ver- bal insults against each other in the streets," Bonnici said. The minister said the amendments remove the specific reference to defama- tion by writing, so that defa- mation through the media is regulated through civil rath- er than criminal proceedings. A legal source told Mal- taToday that the Court will have to understand the spirit of the legislator in interpret- ing the amendment. "The court would have to certainly make a differ- ence between a defamation that takes place on the basis of insults that are based on lies, and therefore cannot be proved in a court of law, and insults whose subjective nature – for example calling someone an idiot – might be less controversial." Indeed, Article 252 contin- ues by saying in sub-article 2, that where the defamation consists of "vague expres- sions or indeterminate re- proaches, or in words or acts which are merely indecent, the offender shall be liable to the punishments established for contraventions" – that is, one that merits a lesser form of punishment than impris- onment. However, the new media bill adds a new dimension to this kind of insult, by al- lowing criminal action to be taken against an insult if the defamation is directed at a family member of the ag- grieved party when this "af- fects the reputation of the aggrieved party". The new law will also in- crease the maximum payable to €700 for the use of insult- ing words or gestures in con- tempt of the President of the Republic. Insults are already regulat- ed by the Criminal Code, as a contravention that carries a fine if the insult is carried "beyond the limit warranted by provocation". In the case of insults, defamation or threat, the court in passing sentence may allow the of- fender, in order that he may be exempted from the whole or part of the punishment, to retract his words or to apolo- gise in open court. In 2014, a court of appeal overturned a decision by the Criminal Court that found a 16-year-old Moviment Graf- fitti activist guilty of calling circus organiser Silvio Zam- mit a "clown" (pulcinell) dur- ing a protest against animal circuses back in 2010. The police had arraigned two youths, accusing them of defaming Zammit, they were handed a six-month condi- tional discharge. In his appeal decision, Mr Justice Lawrence Quintano said the Maltese courts had previously excused the use of words much worse than 'clown' during protests. "In an environment of a protest where participants voice their disapproval for some- thing, the use of the word 'clown' should be accepted in a democratic society." News Original police statements expunged CONTINUED FROM PAGE 1 After the meeting the two young men were given the opportunity to change their police statements – which they did – with the new statement completely contradicting their original declarations. As a result of their revised state- ments the Gozitan police did not proceed with prosecuting the two men. On 5 February, MaltaToday had reported how Nationalist MP Chris Said had asked home affairs minis- ter Carmelo Abela in parliament to come clean over information that the police had not arraigned a number of individuals arrested on drug charges. "Very few arraignments are made and at times concrete action has only been taken because police of- ficers from Malta are deployed in Gozo," Said said during his inter- vention in Parliament at the end of January. MaltaToday reported how Said alleged that "secret meetings" were held at a ministry, in order to have people caught with drugs avoid be- ing arraigned. Abela denied such meetings had taken place within his ministry and insisted that he cannot interfere in the police's operations. Said has also insinuated that they were not charged because of the intervention of influential third parties. The former justice minister also reminded Abela that the informa- tion could easily be compiled by his officials, by analysing the discrep- ancy between those arrested and those arraigned in the Maltese and Gozitan courts. "I have asked in Parliament whether any meetings took place in which it was decided not to ar- raign people arrested for traffick- ing. The minister also has access to statistics about how many people were arrested and how many peo- ple were arraigned and how many were arrested for possession and trafficking but not arraigned. I am not privy to this information, but the minister has access to this in- formation and he can check who was arrested but not arraigned," Said replied. The last time MaltaToday re- ported allegations of irregulari- ties with the Gozitan Police in ar- raigning the football player Daniel Bogdanovic Prime Minister Joseph Muscat had set up an independent inquiry. That inquiry revealed that the arresting officer could have felt a degree of pressure to release Bog- danovic in time for a Sunday foot- ball match, after a telephone call from an Assistant Commissioner in Malta, and a conversation she had with her Superintendent on the day of the footballer's release. Last Wednesday, Bogdanovic was fined €1,000 and had his firearms licence suspended for a year over the incident in question. New media bill: criminal libel goes, but insults are added This is most certainly not a debate that is thorny in Malta, where the pernicious and touchy abound in pub- lic life. In the UK, the Pub- lic Order Act's Section Five permits the arrest of any protestor who causes "alarm or distress". Ludicrous cases abound: in one case the po- lice arrested a student who held up a sign stating Sci- entology was a cult – what we might say is a matter of opinion. Even more laugh- able: a man called Sam Brown asked a police of- ficer in the UK 'Excuse me, do you realise your horse is gay?' and was taken to court for refusing to pay an £80 fine. Protest is always directed at an audience that is not sympathetic to your cause, so insult is clearly going to be perceived by those who do not support the protest. This is why the words of Judge Lawrence Quintano matters: "In an environ- ment of a protest where participants voice their disapproval for something, the use of the word 'clown' should be accepted in a democratic society." Even better would be the words of Lord Justice Sed- ley (Redmond-Bate v DPP): "Free speech includes not only the inoffensive but the irritating, the conten- tious, the eccentric, the he- retical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having." The great gay rights and civil society activist and peace campaigner Peter Tatchell is one such critic of the criminalisation of insults. "If we accept that abuse or insults resulting in likely alarm or distress should be a crime, we risk limiting free and open debate and crimi- nalising dissenting opinions and alternative lifestyles that some very conservative people may find offensive and upsetting," he wrote on the UK's Public Order Act. "The right to mock, ridi- cule and satirise ideas, opinions, people and insti- tutions is put in jeopardy. Section 5 can, in theory, be used to criminalise almost any words, actions or im- ages, if someone (anyone) is likely to be alarmed or distressed by them." Clearly, civilised society requires that people are not gratuitously offensive to each other, but being pro- vocative is in itself a great freedom that can move people to take action in the best interest of others. Bigoted opinions should always be challenged, but insults can also be harm- less incidents which – when criminalised – lead to futile criminal complaints and prosecutions. It should be explicit threats, harass- ment, and incitements to violence that should be criminalised. Criminalising insults: always problematic The proposed media bill proposes to remove "writing or drawing" – so as to repeal criminal libel – but to substitute this by "insults or in any other matter" As a result of their revised statement the Gozitan police did not proceed with prosecuting the two men