Case Summary and Outcome

The Constitutional Court of Malta ruled that a Planning Authority order to remove a banner which questioned authorities about impunity for the killing of Maltese investigative journalist Daphne Caruana Galizia, violated her husband’s and three sons’ right to freedom of expression. The banner posed the following questions: “Why aren’t Keith Schembri and Konrad Mizzi in prison, Police Commissioner? Why isn’t your wife being investigated by the police, Joseph Muscat? Who paid for Daphne Caruana Galizia to be blown up after she asked these questions?” The Constitutional Court considered that the banner had a powerful political message about holding the state accountable for the murder of the journalist, which was a form of expression protected under Article 10 of the European Convention on Human Rights incorporated into Article 41 of the Constitution of Malta. The Court found the Authority acted without justification and in an arbitrary and abusive way. It concluded there had been a violation of the family’s right to freedom of expression and as a remedy, it awarded 5000 euros to each of the applicants.

Facts

The case was brought before the First Hall of the Civil Court in its Constitutional Jurisdiction by the family (husband Peter Caruana Galizia and his three sons Matthew, Andrew and Paul) of Maltese journalist Daphne Caruana Galizia on August 3,2018. She was killed on October 16, 2017 by a car bomb placed under her seat. She was an investigative journalist who wrote about corruption at the highest level of the Government of Malta. After her death, Maltese authorities launched investigations into the killing and three persons who allegedly conducted the assassination were arrested and the collection of evidence against them was initiated. After these developments, the family received very sparse information on the progress of the investigation into who ordered the murder. They were given the impression that the case was being considered as closed.

On  March 13, 2018, the applicants placed a banner on private property in Old Bakery Street in Valletta with the words: “Why aren’t Keith Schembri and Konrad Mizzi in prison, Police Commissioner? / Why isn’t your wife being investigated by the police Joseph Muscat? / Who paid for Daphne Caruana Galizia to be blown up after she asked these questions? ” The owners of the property had given their consent to hang the banner and legal counsel had advised them that permits were only required for advertisements. They considered the message on the banner to be political speech.

By placing the banner in a public street in Malta, the applicants wanted to apply pressure on the competent authorities and deliver a political message critiquing the state of impunity in the country which, in their opinion, had facilitated the journalist’s killing.

On April 3, 2018, a “Stop and Enforcement Notice regarding Billboards and Advertisements” was placed by the respondent Planning Authority (Authority) for the removal of the banner, which was removed on April 7, 2018. The family was not aware that the removal was ordered by the authorities and therefore, reported the theft to the police. On April 15, 2018, they put up the banner again on the same property and with the same words. Without issuing any notice, the authorities removed the banner again less that twelve hours later.

The applicants claimed that the order was illegal and constituted a violation of their right to freedom of expression as protected by Article 41 of the Constitution of Malta and Article 10 of the European Convention on Human Rights, since it stopped them from delivering their message.  This was expressed by way of a letter sent to the respondent Authority. In its response, the Authority declared: “In effect, it transpires that the ‘right’ you profess is not that of freedom of expression “without disproportionate interference’, but the entitlement you deem to have to act arbitrarily and in flagrant violation of the laws of the country.”

The family filed a complaint before the Constitutional Court arguing that both the Planning Authority’s application and interpretation of the Regulations in Notice 36 of 2018 which lead to the ‘Stop and Enforcement Notice regarding Billboards and Advertisements,’ and the subsequent removal of the banners from private property amounted to unjustified, disproportionate and unnecessary interferences in a democratic society. Therefore the interferences were in violation of Article 10 of the European Convention incorporated in the Laws of Malta through Chapter 319 and Article 41 of the Constitution of Malta. The family sought remedies to reinstate their rights as well as appropriate compensation for the infringement.

The Planning Authority opposed the applicants’ request by objecting their claim before the Constitutional Court. It argued that their requests were frivolous and unfounded as they were using their right to freedom of expression as “screen for their illegal conduct.”

Decision Overview

The Constitutional Court (Court) started by saying “without hesitation” that the banners had a strong and powerful message and that the right to freedom of expression protected messages that could offend, bother or even instigate controversy. It repeated that the right to freedom of expression was not an absolute one and that it could be subject to proportionate limitations for legitimate State reasons.

In the case at hand, the words were targeting the persons/bodies entrusted with the responsibility and the duty to investigate the murder of Daphne Caruana Galizia and deliver those responsible for the journalist’s murder to the country’s judicial authorities.

It followed that the message in question deserved protection of the European Convention on Human Rights (ECHR) and of the Constitution of Malta, for its political content and for being closely related to the search for truth by Daphne Caruana Galizia’s relatives.

The Court went on to examine whether the interference with the applicant’s freedom of expression was justified under Article 10 of the ECHR and Article 41 of the Constitution. Both the Constitution and the Convention established criteria to strike a balance between the right to freedom of expression, on the one hand, and on the rights and interests of the State, as well as of private persons, on the other, based on what is necessary or justifiable in a democratic society.

The Court did not dispute that there was an interference, and then examined whether it was prescribed by law. It first contested the Authority’s claim in their Legal Notice 36 that the banner constituted an advertisement under Cap. 552 of the Laws of Malta. The Court observed that the applicants were not advertising an “object, a product or a service,” and that the banner could neither be considered an advertisement by its content, nor a billboard by its physical characteristics.

The Court determined that the enforcement of the Legal Notice was based on an incorrect application of the law. The order was given verbally by Johann Buttigieg, the Authority’s CEO, it was never drafted in writing and there were no guidelines regarding its interpretation. According to witnesses in the trial, the Authority received an unspecified number of complaints which compelled them to assess the legality of the banner and to order its “urgent” removal. The Authority’s officials followed the order from the CEO, believing it had the force of the law. The Court observed that “even if there were reports and complaints, a democratic society is not a society led by mob rule but one that is led by … principles which give the highest protection to the form of political expression.”

The Court found that the CEO’s actions and order did not satisfy the requirements of transparency, accountability, clarity and foreseeability as articulated in ECHR The Sunday Times v. The United Kingdom. The Court concluded that a private citizen could not then have foreseen that a banner with a political message could have been considered an “advertisement.” Moreover, without clearly written and accessible guidelines, “the regulation gave licence to censor” expression by private individuals. In light of the foregoing, the Authority did not execute the order through the force of the law and exceeded the duties granted to it by the legislator and therefore, the order amounted to a violation of the applicant’s freedom of expression.

The Court went on to assess whether the interference was “reasonably justifiable” (Art. 41) or pursued one of the legitimate aims listed in the Convention and the Constitution, such as being “necessary in a democratic society” (Art. 10) or meeting “a pressing social need” for the protection of other rights. The Authority did not invoke any of the aims to justify the interference and the Court added that none were applicable in the case at hand.

The Court found the banner contained a message of “political significance” which was of great public interest and therefore it should have received the “highest protection under the law.” The banner called for accountability for the murder of a journalist “who, though her writings, had exposed corruption at the highest political echelons in the country” and more broadly concerned the rule of law in a democratic society. Citing established case law of the European Court of Human Rights, the Court reiterated that there was little scope for restrictions on political speech or on debate, and therefore, such interferences required very strong reasons – which were lacking in the present case. Due to the seriousness of the interference, the Court stated it had a “duty to intervene in order to remedy the infringement of a fundamental right and to prevent that infringement from persisting.”

The Court concluded that the Authority failed to evaluate the nature and “impact of the message within the scope of the supreme laws” required by agents of the State. Consequently, the Authority acted in an “arbitrary and abusive manner” by removing the banner from private property, which did not meet a pressing social need and could not be deemed necessary in a democratic society.  The conduct of the Authority was in violation of the Convention and Constitution.

The Court awarded five thousands euros for non-pecuniary damages to each of the applicants taking into consideration that they were the husband and sons of Daphne Caruana Galizia. As family members, they posed questions necessary for investigating who was responsible for her murder. The Court noted that the banner’s removal and the resulting silencing of their call for justice had surely caused them “great sorrow.”