Apologia Pro Scripto Meo

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Before we get into the substance of the matter, one should notice that this discussion isn’t the first about the same topic – the Freedom of Speech, of Expression. Unfortunately however, this right is once again under threat by none other than the Maltese lawmakers. Recently, a Private Member’s Bill was presented to Parliament named the Media and Defamation Act, where a number of controversial provisions were included, among which is the registration of websites. Despite the dangerous implications of such a provision, one should point out that at this stage nothing is set in stone and there is the possibility of amendments being made. That is why in this article, we will be looking at things from a more abstract and conceptual point of view.

Without stepping on too many political toes, the context is that a certain Minister was seen in a not-so-State-related establishment while on a conference courtesy of the German government, and this was reported by a well-known blogger/journalist (interpretations of such occupation may vary). The result was uproar by the general public, whether in disgust or in defence of the Minister in question, and a precautionary warrant is being issued against such blogger/journalist for 4 libel cases. The grand total of frozen assets is around €47.000. Whether that is a large enough fraction of the said blogger/journalist’s wealth to be a problem as to affect her state of living is besides the point, even if a curious one.

The point of discussion here is that before a journalist has the right to defend him/herself (i.e. before the case has even started in Court), a part of the assets of the defendant are frozen as a personal guarantee in favour of the claimant regardless of the innocence or guilt of the defendant in question. From the outset this puts the defendant at a disadvantage, practically having to prove himself innocent while under the ‘presumption of guilt’ before any sort of judgement has been passed. What makes this more worrying is that this provision has rarely been used, and at that, never been used in a political context. It gives the impression that this provision could be used at will by politicians in order to silence any criticism levelled at them, and serve as a form of deterrent to other potential critics. Even though the Bill is removing the possibility of such a warrant being filed, it still raises the question – why was such a potentially dangerous provision added in the first place?

A rather interesting point on the matter of precautionary warrants is that even though the Bill removes the possibility of filing them in first place, already initiated proceedings will carry on with the older law (unless there is a prison term involved). Therefore, until such Bill is enacted, this keeps journalists slightly on edge about writing opinion pieces criticising the actions of politicians for fear of having their assets frozen for each of the allegedly libellous claims they make. The consequences of having such a danger are creating a climate of fear amongst the people, and perhaps undermining one of the reasons for the media’s existence – keeping politicians, especially those in Government, accountable for their actions.

Perhaps the most controversial part of the new Media and Defamation Bill is that which deals with the registration of websites with the Media Registrar. This is dealt with in Articles 19 and 20 of the Bill, relating to the duty of registration of any newspaper, publication or website to the Media Registrar, whose roles are detailed in the latter Article. This involves giving the Registrar one’s personal details, be they the editor, publisher or domain owner of a website within ten days of their becoming editors, publishers or domain owners – anyone who does not comply is subject to “a fine (multa) not exceeding one thousand euro (€1,000).” The role of the Media Registrar is to place the entries into a Register, which is to be updated whenever any change occurs to the registered entries “as may be appropriate or as may be prescribed by regulations made by the Prime Minister under this Act.” It is controversial due to the somewhat broad terms used in the Act to define who is to register themselves as an editor, publisher or domain owner of a website. The fact that anyone above the age of 18 may be an editor does not help the matter either.

At this point one can only hypothesise as to the intentions of the lawmakers behind the drafting of the Act. But from the wording of the law and the recent events that have led to the Act being drafted, one might think that on the one hand, the Government has just defended itself from a scandal regarding one of its Ministers using the older law and using the Act to defend itself from potential criticism which could be deemed ‘defamatory’ on the other. This is done by keeping tabs on those who put the news out there, be it on their newspapers, publications or websites through the Media Register. One could be forgiven for thinking that the lawmaker leaves a lot of room for discretion when it comes to the line of demarcation between what should be registered and not be registered, as well as what sort of posts could be considered defamatory or not. This is despite the defences that the Act offers, such as honest opinions and the question of substantial truth.

All of this brings into mind one final thought. A concept that certain people find hard to understand is that there can never be harmony between having perfect freedom and perfect security – it is always a question of compromise between the two. That is, in order to feel secure on the one hand, one must be ready to sacrifice a little bit of freedom on the other – that is how government surveillance in a democracy works. Nevertheless, this does not mean that the Government should use that premise to its advantage in order to give a picture which is different from the truth, just to appease its supporters. This Bill should be an opportunity for all to hold the Government accountable for its actions and insist that something as fundamental as the right to express an opinion should be safeguarded at all costs. Just as Wilfred Owen always used his poetry to show the suffering of the Great War despite being told to show the war in a more positive light, one should never settle for compromises when it comes to telling the truth, and the right to speak that truth.

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