Tag: libel

Categories
Mediawatch

Ignorance of the Law

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Muscat and his Panama collective are not getting on too well with the press right now. Unless you ask the right questions you will be faced with a barrage of childish word play and incosequential “answers” that are anything but. When none of the stonewalling and feigned misunderstandings works, Muscat shifts to aggressive gear and, as in the case of the Frendo journalist who would not stop asking questions, threatens with legal action. “Be careful, you might expose yourself to libel” is the latest trick of this most liberal of government leaders who has civil rights to heart.

Well we have news for Joseph Muscat. Libel requires publication or broadcast of an assertion. A question that remains unanswered can hardly constitute libel material. This bullying must stop and if it does not stop it must be ignored by those putting the question for the threat is ineffective.

Categories
Internet Rights

Saving Daphne’s Privates

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Gaffarena Gate has been the black hole of news and information over the past week or so. Anything else newsworthy was sucked into the vortex of the spinning black hole of Falzon’s resignation, Muscat’s double-speak on governance and the n-th celebration of disgraced politicians by a Labour mass meeting. Patriots and pork only just made it past the all-enveloping scandal and this was probably due more  to the ridiculous stunts performed by the defenders of bigilla and zalzett than to any real newsworthiness. Even the Times descended into silly land asking the haplessly controversial question whether persons of a particular religion should be allowed to congregate and play.

Meanwhile in a law court not so far, far away a very important bit of jurisprudence was in the making. In the court presided by the impeccable Magistrate Depasquale, Minister Konrad Mizzi was desperate to prove that he had cause for grievance against blogger (for ’tis in this vest that she hath been summonsed)  Daphne Caruana Galizia. Such cause for grievance had been filed under Malta’s much maligned, misused and abused libel laws – those that have criminal consequences, so to speak. Caruana Galizia had written about some supposed/alleged fling between Minister Conrad Mizzi and one of his minions involving, among other allegations, an exchange of kisses in public. Minister Mizzi could only but cry “lie” at this serious allegation that would, if proven true,  amount to an extra-marital flirtation by said Minister. Hence the law-suit. So far so good.

We were informed, through the medium of the press, that in the sitting of January 18th, the line taken by Mizzi’s lawyers was a rather unorthodox one. Messers Mifsud Bonnici (Aaron) and Lia (Pawlu) were insisting that Caruana Galizia reveal the source of the libellous information. And here lies the problem. Not just for Mme Caruana Galizia but for every single citizen of the island of pork-guzzling patriots and martyred ex-Parliamentary Secretaries. You see, Caruana Galizia was sticking to the age old  universal protection afforded to journalists with regard to their sources. She was not obliged at law, she argued, to reveal her sources for her journalistic work. True. Very true.

The only problem was that the legal team for Minister Mizzi of the government that championed the protection of whistleblowers among many other things decided to become incredibly narrow and literal minded in their application of the law. Shylock was after his pound of flesh. The reasoning put forward by the lawyer who has been touted as the next Chief Justice of the land (pray note that this also means that he would chair the Constitutional Court, guardian of all things holy) was that since the blog in which Daphne writes can not be registered under the Press Act then surely Daphne Caruana Galizia is not acting as a journalist whenever she writes in her blog. Which would mean of course that her sources – who she has called moles, spies and other names through the lifespan of her blog – would be afforded no protection.

Which is a load of hogwash of course. A load of hogwash that would only find place in Kafka’s novels or in the best of Soviet theatres and kangaroo courts. But this is Malta in the time of Joseph Muscat and a very very weird interpretation of the law and legal rights (The government has just gone and sued itself in a case so don’t even dare challenging this assertion).

Let’s go step by step.

1. She is not a journalist

You may not agree with the woman. You may find her blog to be the result of a particularly efficient network that collates information and disseminates it in a selective Wikileaks manner. You may, like me, find her automatic negative reaction to anything Gozitan particularly distasteful. You may think all these things and more but to insist that Daphne Caruana Galizia – even when restricted to the blogging hat of Daphne Caruana Galizia – is not a journalist is complete and utter hogwash. In the year 2000, the Committee of Ministers of the Council of Europe drafted a recommendation signed by most of its member states with regard to the protection of journalists from disclosing their sources. (Full name – Recommendation No. R (2000) 7  of the Committee of Ministers to member states on the right of journalists not to disclose their sources of information). Here’s the definition section of the Recommendation:

Definitions

For the purposes of this Recommendation:

a. the term “journalist” means any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication;

b. the term “information” means any statement of fact, opinion or idea in the form of text, sound and/or picture;

c. the term “source” means any person who provides information to a journalist;

d. the term “information identifying a source” means, as far as this is likely to lead to the identification of a source:

i. the name and personal data as well as voice and image of a source,

ii. the factual circumstances of acquiring information from a source by a journalist,

iii. the unpublished content of the information provided by a source to a journalist, and

iv. personal data of journalists and their employers related to their professional work.

It fits nicely does it not? We have not even begun to look at the jurisprudence of the Strasbourg Court (Goodwin anyone?) or the European Charter of Rights. The recommendation is already clear enough about how far the protection should go. It is not restricted to some state defined numerus clausus such as a list of “approved journalists” under the Press Act. Any natural or legal person. Regularly engaged in the collection and dissemination of information. To the public. Via any means of mass communication. I don’t know about you but it is pretty clear to me that Daphne’s blog falls fair and square within this definition and that would make Daphne a journalist even when she is limited to blogging on the Running Commentary.

2. She has to disclose the source

What is this obsession about the source anyway? It is in fact the most dangerous part of the case being built by Mifsud Bonnici and Lia. Don’t be mistaken because there are no scruples here. We all know that Daphne Caruana Galizia is prepared to go all the way to defend her right to publish information in blog form. Blog and be damned she will. Aaron Mifsud Bonnici knows it, Pawlu Lia knows it and most of all Konrad Mizzi knows it. The very public obnoxious shake up here is not directed at Caruana Galizia but at any potential source. What after all is the use of getting the accused in the libel case to give up the source of the information? Very little really. Except that Mizzi and his team do not care about anything other than putting the fear of god into anyone who might in the future be made to think twice about whether or not to send one of those quickly snapped photos of yet another politicians’ misdemeanors.

Whether a Minister chooses to have an extra-marital fling is a debatable piece of news that can be used in various ways. As any Monica Lewinsky, Lord Boothby or John Profumo might vouch, sexual affairs and politicians rarely are just that. More often than not they have repercussions of a constitutional nature and any self-respecting journalist in his right mind would want to investigate and report.

Sources are paramount for Daphne’s kind of blog that is less pundit and more reportage thanks to a long list of willing suppliers of information that end up being a very informal but well-connected network. Muscat’s men know that the effects of this network can be lethal. Which is why in this case they are not really going for the journalist and editor of the blog. They want to get to the source. They want to put an end to the network of informants and to do so they are prepared to attempt to get the courts of the land to apply a very dangerous and literal-minded precedent.

To conclude. The journalistic profession has not had a good last two decades. When more than two-thirds of the people who get their bread and butter from some form of journalistic work are inextricably linked with the major political parties you tend to get a withering of the power of the fourth estate – one of the important pillars of a democratic society. The lack of respect towards the profession was never more blatant than in moments when journalist credentials were handed out to anybody that the parties needed for a particular stunt. Remember JPO bearing a PN press card in order to harass Alfred Sant in his crocodile tears phase?

The profession needs to win back respect and it can only do so by performing its duty of investigating and monitoring the powers of the nation without letting them interfere. It also deserves all forms of protection from any institutional assault such as this one being orchestrated by Konrad Mizzi.

It is not Daphne Caruana Galizia who is in danger. It is an important cog in the machinery of a democracy and it is the citizens of the democracy who have a right to access all forms of information and weigh it on their own account. For all our sake and for all that we stand for, Daphne’s privates must be saved.

“They’re talking about things of which they don’t have the slightest understanding, anyway. It’s only because of their stupidity that they’re able to be so sure of themselves.”
― Franz Kafka, The Trial

Categories
Mediawatch Politics

Pardon their Frenċ

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The Għarb Local Council have gone all hot under the collar about what they call “allegations” made by Katie Holmes, mother of convicted Welshman Daniel Holmes. In yet another appeal to have Daniel’s punishment shortened from the draconian 10 years, Katie Holmes mentioned the fact that the man considered by many to be holy and known as Frenċ tal-Għarb had also used cannabis to cure people. Well, it turns out that hell knows no fury like a Local Council who deems that its Holy Man hath been scorned. The representatives of the tiny (and beautiful) Gozitan village whose name means “The West” resort to threatening Katie Holmes with a case of defamation/libel. In their mind it was the most they could do short of issuing a challenge in the village pjazza at the stroke of the midday bell.

A little aside here. By some twist of cosmic fate all this happened on the first anniversary of the Charlie Hebdo killings. You know the ones that I am talking about – the ones where the whole world asked itself whether a bunch of lame satirists had gone a step too far into “provoking” a bloody response from the fanatical and the ignorant. On a much lesser scale of cosmic importance I had also just blogged about the irrational and disproportionate reaction in Kyrgyzstan to a facebook post about a national dish.

Back to the West. The dramatis personae of this little farce makes raw material for a magical novel of the Garcia Marquez kind. We have the beleaguered mother of a man condemned by a hypocritical society to rot away in its prisons while former drug traffickers and conspirators hobnob with the leaders of the land. She could be pictured like the desperate Magdalene and Mary at the foot of the cross, heart torn apart by all the suffering caused to her son. Katie Holmes was hoping to inspire empathy with her story about the Gozitan faith healer and expert herbalist. Cannabis, she was saying, should not be seen in such a bad light in this country after all when it is so plain that some good can come out of it.

What of Frenċ? Well, I can tell you a bit about Frenċ the man and quasi-scientist. I have people in my family who, years before internet turned the world into a global village, had benefited from his healing “powers’. No marijuana was harmed in that particular feat since the stories I am told seem to have involved much more the power of conviction than anything else. Frenċ is known to have used herbs and plants endemic to the islands in order to help ailing visitors. That and a dose of Hail Marys and Our Fathers to be fair, but the latter part of the healing process are of little use in this story. We live in a world where we are oblivious to the fact that the ingredients in every medicinal we take find their origin in herbs.

You’d have to be an idiot though not to have heard of the medicinal effects of cannabis. It would be no surprise then were Frenċ to have prescribed its use to a suffering patient (that and a dose of Hail Marys of course). Cannabis just goes to be added to the long list of herbs and plants with beneficial properties such as chamomile (weariness, bowel inflammation), poppy (asthma, bronchitis, whooping cough), rosemary (headaches, epilepsy, circulation), sage (headaches, cough), primrose (rest, sedative) and lavender (fainting and nausea). Around Frenċ’s time on this earth, in London in 1916, Harrods were selling a kit described as “A Welcome Present for Friends at the Front” containing cocaine, morphine, syringes and needles. Also, heroin was sent to the soldiers in the trenches since it had the reputation of being particularly effective against tuberculosis and pneumonia.

So would Frenċ the man and herbalist (as against Frenċ the icon) have been so out of line had he really used cannabis as is alleged by Ms Holmes? Not really. At most he would have been a visionary and far ahead of his time.

Which brings me to the final actor in this dramatis personae. The Local Council. I cannot help but picture them as the Jewison portrayed the Sanhedrin in Jesus Christ Superstar. Standing on the scaffolding bare chested they pound their fists on the metal angry at the allegations and shit-stirring as they perceive it. “Must die must die this Jesus must die.”

There is no amount of WTFs that can be plastered outside their council door in order to emphasise the base stupidity of their actions. How on earth do they represent Frenċ in court anyway? Is this a class action? Did they ask themselves whether this is what Frenċ would have wanted? Again, from what I hear about the man he was blessed with an incredible amount of practicality and logic – which is probably what made him stand out so much in the first place. That such logic and intelligence was imbued with a heavy dose of humility must have been a great asset to the man. Such assets are alas lacking among the egregious members of the Gharb Local Council. They want their pound of flesh and they want it fast – all because it is alleged that Frenċ used the right herb to do the right thing.

Frenċ is Gozitan (ok, Maltese too) for Francis. Just like the Pope. You know, that man in Rome who is taking great strides in reconciling the church with the man in the street. He once said that a little mercy makes the world less cold and more just. If the councillors cannot find it in themselves to recognise the ridiculous nature of their actions and if they cannot realise that their quest is akin to that of any fanatic eager to exact his revenge upon anyone who they deem has insulted them, then and only then should they at least resort to being merciful and retract their pompous threats of libel and defamation action.

 

Categories
Mediawatch

A Time to Gag

Anglu Farrugia will cry crocodile tears at the Labour Party General Council. Jeffrey Pullicino Orlando will resort to reporting “evil bloggers” on his Facebook wall. Franco Debono will include a new law regulating evil attacks in his program of legislation (which program, having its hours counted, threatens to be the largest amount of laws proposed in the shortest time). General appeals and not-so-subtle implications will be made that the PM should do something about the bloggers and columnists who are resorting to “personal attacks”. And we all get carried away.

Your average listener or reader will not hesitate to chime in with the scarcely researched tautology of “Yes, there should be some form of decency, we have gone too far”. But have we? Or rather – what kind of legislation and control are these paladins of democracy seeking? While the general public showed the predictable kind of ambivalence when the laws dubbed as the New Censorship laws were published the sweeping statements about controlling other fields of expression than the arts multiplied.

First. A note about the new laws. They have nothing to do with such issues as libel and slander. What we have there is a new system of rating theatre and cinema that includes an element of self-discipline. This approach is highly commendable from a libertarian point of view because it emphasises (and exalts) the individual capacity to take responsible decisions. The theatre producer is invited to “censor” his own piece before any official scissors come into play. Self-control, self-censorship – an ability to assess what is and what is not acceptable in wider society : that is the heritage of an intelligent, emancipated and responsible society. Are we ready for the show?

Well, insofar as the political arena is concerned it looks like it is going to be tough. I am of the opinion that the current laws (if we DO have to look at legislation rather than policy first) are more than enough. It is a combination of publish (responsibly) and be damned. Defence in libel includes the “exceptio veritatis” (exception of truth) – the defence that is based on the idea that whatever was said about someone can be seen to be the truth. This is sometimes the reason why somebody who claims to have been libelled fails to go to court for fear of the “libel” being proven to have been the truth.

The “exceptio veritatis” is also itself controlled. While proving that a statement that is being scrutinised for libel or slander might stand strong if it is proved to be true, the truth is not a useful defence in the case of invasion of privacy. Stating that a Minister hosted a party with drugs freely available is defensible with the truth exception – i.e. if the fact is proven to be true. Saying that a Minister has the backside the side of a lorry it is an invasion of privacy and the mere fact that it is true (though even there – the exaggerated hyperbole is such that even the truth is obviously non-existent) will not suffice as a defence.

The fact of the matter is that libel, slander and defamation laws when applied constitute a solid last resort in the battlefield. On the other hand calling for more regulation is a perverse counter-productive move that demonstrates an ignorance of the law and, sadly, an intent to revert to the times of “Indħil Barrani” when our laws were tailor made to serve the interests of whoever needed to gag uncomfortable elements.

Check out again the Newt Gingrich video (top right) starting from 2’20”. Gingrich is asked a very uncomfortable question during a prime primary debate. It is an issue that is very private and Gingrich’s reaction says it all. “I would not like to answer it but I will”. Gingrich goes on to tackle the method of questioning and shoots some repartees of his own towards the press that has peddled the story. There and then. No courts. No gagging orders. Pure and simple intelligent response. And then the question is left to the voters to judge and value. Will voters give more importance to the story of Newt wanting an open relationship or to the fact that Newt was considered enough of a heavyweight to warrant a relentless barrage of mediatic coverage of the fact?

Which brings me to the question of politicians and privacy. Unfortunately the risk of reneging on most of what is private in their lives is a risk that politicians (and footballers, and actors, and prominent businessmen) take in a calculated manner more and more. When campaigns are built on family values and when consorts and children are used in campaigns to be paraded as some form of assets to the main storyline then we should not be surprised that the vultures in the press will be probing to examine whether this too is a facade. When you commit errors during a campaign and these are highlighted, parodied and caricaturised you’d be stupid to claim that these are personal attacks.

Our democracy does not need gagging orders and stricter regulation. Our democracy needs intelligent citizens and … if it is not asking for too much … intelligent politicians.