CASE OF AQUILINA AND OTHERS v. MALTA
Violation of Art. 10;Non-pecuniary damage - award
David Scicluna;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva
6. The applicants were born in 1942, 1973 and 1954 respectively and live in Malta. When the facts that gave rise to the complaint occurred, the first applicant was the editor of the newspaper “The Times of Malta”, the second applicant was a court reporter for the said newspaper and the third applicant was the registered newspaper’s printer. 7. On 20 June 1995 a bigamy case, in which the accused was represented by Dr A., was to be heard before the Court of Magistrates. Dr A. was called a number of times but he failed to appear. The accused explained that there had been trouble between them in view of requests for excessive fees which he was unable to pay. According to the second applicant, the presiding magistrate repeatedly expressed his intention in open court to find Dr A. in contempt of court. Indeed, in the chaotic atmosphere in the courtroom, the second applicant heard the magistrate find Dr A. to be in contempt of court. According to the second applicant, she subsequently attempted to verify this fact through the records of the proceedings, but both the magistrate and the court deputy registrar had already left their chambers. She therefore verified what she had heard with another reporter present in the courtroom. He confirmed her version. 8. A decision of the same date in the relevant bigamy proceedings referred to the fact that Dr A.’s client’s request to replace his lawyer at that stage of the proceedings verged on contempt of court. However, in view of the circumstances as explained to the court, the case was adjourned. 9. On 21 June 1995, the Times of Malta newspaper published a report entitled ‘Lawyer found in Contempt of Court’. It reported, inter alia, that Dr A. had been found guilty of contempt of court for failing to appear before a magistrate hearing the final stages of a bigamy case. 10. On the same day Dr A. called the second applicant and protested vigorously about the article. Subsequently, the second applicant proceeded to verify the information by checking the record of the proceedings. However, the relevant information was not registered therein. In consequence on 22 June 1995 the newspaper published a report entitled ‘Lawyer Not Found in Contempt of Court’ which reproduced the relevant record of the proceedings and stated that “any inconvenience caused to Dr A. is regretted”. 11. Nonetheless, on the same day, Dr A. brought civil proceedings for defamation under Part III of the Press Act (actions arising from press offences). The applicants pleaded, inter alia, that the publication was privileged under section 33 (d) of the Press Act (see Relevant domestic law below), that it was not libellous, that mitigation in accordance with section 28 (2) of the Press Act should be applied in view of the apology published on the following day and that the third applicant had not read the report prior to its publication (see Relevant domestic law). 12. By a decision of 13 June 1997, the court, while acknowledging that the record of the case did not cover the entire proceedings, allowed the applicants to present evidence. On 24 February 1998, in his testimony, the prosecutor in the bigamy case explained that Dr A. had not appeared at the hearing. The prosecutor related that he had tried to keep the magistrate calm and was nearly found guilty of contempt himself because he was playing defence lawyer. The prosecutor stated that, at that moment, the magistrate dictated a minute, which he thought was directed towards him, that if he opened his mouth he would himself be found in contempt of court. He had also understood, at that moment, that the magistrate found Dr A. to be in contempt of court because he did not appear. The prosecutor reiterated that, at that moment, the magistrate was very angry and that he understood that he had found Dr A. guilty of contempt. When asked whether the impugned article reflected what really went on in the court room, the prosecutor replied “effectively it reflects what happened in court in short”. He continued to say that while much more was said in the court room, at that time, the phrase in the article “the magistrate found Dr A. to be in contempt of court” reflected the impression he had had as to what effectively happened at that moment in time. 13. On 5 November 1999 the Civil Court found against the applicants. It rejected the applicants’ first two above-mentioned defence pleas. In its presentation of the facts the court recalled the above mentioned evidence. It, however, found that the article did not coincide properly with what had happened, in particular in its heading, since, as appeared clearly from the minutes of the hearing, it was not true that the plaintiff was found guilty of contempt of court. Thus, the publication was not a fair report of the proceedings. Consequently, it could not be considered privileged. The court went on to note that the defendants tried to diminish their blame for their incorrect reporting by proving that the hearing had been chaotic. It was for this reason that the journalist misunderstood what had happened. The defendants had further shown that the prosecutor too had misunderstood what had happened, as he had also understood that the plaintiff had been found guilty of contempt. In the court’s view, however, this merely highlighted the need for the reporter to verify her information. The reporter’s interest in publishing information was legitimate. However, it could not be more important than someone’s reputation. The statement that Dr A. had been found to be in contempt of court surely harmed his reputation as it incited the supposition that he had not fulfilled his duties as a lawyer. Thus, it found the statement in question to be defamatory and taking account of the fact that they had published an apology and that the printer had not read the report at issue, it ordered the applicants to pay, in solidum, 300 Maltese liras (MTL – approximately 720 euros (EUR)) in damages with interest and costs, but limiting the third applicant’s responsibility to MTL 150 (approximately EUR 360) plus interest. 14. The applicants appealed and Dr A. cross-appealed. 15. On 27 June 2003 the Court of Appeal rejected both appeals, reiterating that the statement had not reflected the truth and adding that when the statement was in itself injurious, mischievous intent (“animus injurandi”) was presumed. 16. On 31 May 2004 the applicants brought constitutional redress proceedings, claiming that they had published a faithful version of what went on in the courtroom and that the above-mentioned judgments breached their right to freedom of expression. Despite the applicants’ opposition, Dr A. was allowed to intervene in the proceedings. 17. On 24 May 2007 the Civil Court (First Hall) found against the applicants. 18. While extensively reiterating the principles derived from the Court’s case-law, the Civil Court noted that during the defamation proceedings it was established that the fact reported had not been true, and that the applicants had a duty to verify the relevant information. Upon examination of the record of the defamation proceedings, the Civil Court in its constitutional jurisdiction concluded that the domestic courts’ conclusions had not been unreasonable. The fact that the applicants had published an apology was of little relevance, if any, if the information published in the first place was false. In such circumstances it was not unreasonable for the courts to protect Dr A.’s reputation and limit the applicants’ right to freedom of expression. 19. On 4 June 2007 the applicants appealed. On 16 January 2008 the Constitutional Court rejected the applicants’ appeal. It held that a journalist had to assume responsibility for what he or she decided to publish. If an item was presented as fact then the journalist must be able to prove it. Even if acting in good faith, the press may only publish facts and not what appears to it to be fact. Had the second applicant verified the record of the proceedings she could have avoided misinforming the public. Citing the Court’s case-law, the Constitutional Court held that, while it was not for them to establish the veracity of the facts at issue, the domestic courts’ judgments in favour of Dr A. had not infringed the applicants’ rights under Article 10. The public had a duty to be informed of true and verified facts, in good faith, as was to be expected from professional journalism. 20. Section 28 of the Press Act, Chapter 248 of the Laws of Malta, relates to damages for defamatory libel. Subsection 2, in so far as relevant, reads as follows: “In any case to which this article applies, the defendant may, in mitigation of damages, prove that he made or offered to make an apology to the plaintiff for such defamation before the commencement of the action for damages or, as soon afterwards as he had an opportunity of doing so where the action commenced before there was an opportunity of making or offering such apology: Provided that the defendant shall not be allowed to adduce such proof in mitigation of damages if he has raised a plea of justification in terms of section 12.” 21. According to section 33 (d) of the Press Act, in so far as relevant, the following are privileged publications, in that no action shall lie in respect of them: “Publications of reports of any proceedings in a court of justice in Malta provided such reports are fair reports of the proceedings and the publication of such reports or proceedings is not prohibited by law or by the court...” 22. Article 518 of the Criminal Code, Chapter 9 of the Laws of Malta, reads as follows: “The acts and documents of the courts of criminal justice shall not be open to inspection, nor shall copies thereof be given, without the special permission of the court, except by or to the Attorney General, by or to the parties concerned or by or to any advocate or legal procurator authorised by such parties; but any act, which is pronounced in open court, shall be open to inspection by any person, and copies thereof may be given on payment of the usual fee: Provided that a procès-verbal and any depositions and documents filed therewith shall be open to inspection, and copies thereof shall be given, only at the discretion of the Attorney General and on payment of such fees as may be prescribed by the Minister responsible for justice ....”