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.
