Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Expands Expression
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The First Hall of the Civil Court of Malta (Constitutional Seat) ruled that a magistrates court in a libel case had violated the right to freedom of expression of two editors of the Sunday Times of Malta by awarding damages against them following an article headed “Patients swindled in scam – Top MUMN official investigated”. The two editors had been ordered to pay €10,000 and €1,500 damages respectively in libel proceedings brought by the Malta Union of Midwives and Nurses. The Court reasoned that the use of the words ”top official” could not be said to identify any one of the executive committee members; the information was in the public interest; and the applicants had acted in good faith and prudently in bringing the matter to the attention of the public promptly and in not publishing the nurse’s name. Further, the Court said that to decide otherwise and consider the article libelous would create a “a chilling effect”on the Maltese press, causing journalists to think twice before publishing investigative articles out of fear of libel damages.
Former news editor of the Sunday Times of Malta Ariadne Massa and former editor Steve Mallia were sued for libel by four committee members of the Malta Union of Midwives and Nurses (MUMN), over an August 2010 article, which revealed that a nurse and a salesman were deceiving elderly patients into paying for tests which were available for free at public hospitals.
A magistrate’s court found in the MUMN’s favour and ordered Massa to pay €10,000 and Mallia to pay €1,500 in damages to committee members. The damages were reduced to €4,000 on appeal in 2015, after which MUMN obtained garnishee orders, freezing the amount in their accounts.
The two editors filed a constitutional case against the Attorney General on the basis of a violation of their right to freedom of expression.
Judge Padovani Grima firstly pointed out that freedom of expression is protected by Article 41 of the Constitution of Malta and Article 10 of the European Convention on Human Rights (ECHR).
She then turned to the impugned article which had referred to the scam involving a nurse who was “self-employed in a managerial position at Mater Dei and occupies a top place within the structures of the Malta Union of Midwives and Nurses”. The Judge referred to Massa’s evidence that she had been careful not to identify the nurse describing him instead as occupying a managerial position within MUMN, where he was chairman of the Mater Dei Group Committee. She said she had tried but failed to contact the said nurse for comment and did not want to name him because there was also a surgeon by that name at the hospital. Further, the applicants decided that the story was sufficiently important and in the public interest to be published urgently and without comment.
The Judge went on to carry out a comprehensive review of the European Court of Human Rights’ (ECtHR) jurisprudence on Article 10, specifically that “[f]reedom of expression constitutes one of the essential foundations of a [democratic] society” (Handyside v. United Kingdom) and that the press “plays its vital role of public watchdog and to impart information and ideas on matters of public interest” (The Sunday Times v. United Kingdom). She proceeded to point out that the freedom is not absolute and “the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others”. She said that this need for balance was reflected in Malta’s own constitutional jurisprudence, for example, the 1992 case of Vincent Borg vs Victor Camilleri where the Court of Appeal said that the right to expression does not give “the press an immunity passport and a balance always needs to be maintained between the right to criticize in a democratic society and another right, no less necessary, the right of everyone to defend his reputation, honor and good name”.
She said that both European and Maltese jurisprudence specified three elements that had to be examined when determining whether a restriction on freedom of expression is justifiable: it must be prescribed by law, have a legitimate purpose and be necessary in a democratic society.
The Judge stressed that a journalist should not be punished for acting in good faith but must demonstrate this by acting responsibly, with diligence and professionalism in obtaining information and having sufficient reason to believe that the information is true. She also pointed out the difference between reporting facts and making value judgements, the latter of which can’t be proved but must be based on actual facts upon which such a value judgement could be made.
The Judge said that the article was one of public interest, indeed of such public interest that it triggered an immediate investigation by the Minister of Health who eventually launched criminal proceedings. Moreover, it was imperative that the information be published as soon as possible, to protect victims, or potential victims from the fraudulent scheme. In these circumstances the Judge found that the applicants were justified in publishing the article without waiting for comment and their action couldn’t be used as a basis for restricting their rights. On the contrary, she said, the applicants had acted prudently in bringing the matter to the attention of the public promptly and in not publishing the nurse’s name to avoid a mix up.
The Judge stated that a central element of the case was the fact that although the four officers themselves felt stigmatized by the applicants’ reporting, the same executive officers were never mentioned by name, and could not be identified in the fraud as reported by the applicant. In other words, the executive members’ complaint was that by using the words “top official”, the applicant had identified one or other of them as the person who was committing the fraud in question. The Judge considered that, in line with the ECtHR ruling in Thorgeir Thorgeirson v. Iceland, the applicants’ article could not be considered as an attack against four executive officers or any one of them.
She found that the description of a top official was not a statement of fact but constituted a value judgement made by a journalist regarding the position of the person allegedly involved in the crime reported. She noted that at no time did the journalist say that the nurse in question occupied an executive position, but only a “top spot”. The Judge also considered that the applicant reporter was acting in good faith and the fact that the Court of Appeal considered that her intention was not relevant violated her right to freedom of expression.
The Court concluded that were the article to be considered libelous toward the MUMN executives this, would create a “a chilling effect”on the Maltese press, causing journalists to think twice before publishing investigative articles out of fear of libel damages. The Court awarded €2,000 to each applicant by way of compensation.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by ruling in favor of press freedom and overturning decisions of the magistrates court and the Court of Appeal which had awarded libel damages against two journalists.
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