AS TO THE ADMISSIBILITY OF

                      Application No. 29473/95

                      by Lawrence GRECH and Anthony MONTANARO

                      against Malta

                      __________

      The European Commission of Human Rights (First Chamber) sitting

in private on 21 January 1997, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   E. BUSUTTIL

                 A. WEITZEL

                 L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs.  M. HION

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 23 October 1995

by Lawrence GRECH and Anthony MONTANARO against Malta and registered

on 6 December 1995 under file No. 29473/95;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicants are citizens of and residents in Malta. They are

the editors of a newspaper, the Sunday Times. The first applicant was

born in 1948 and the second in 1921. In the proceedings before the

Commission they are represented by Mr. G. Bonello, a lawyer practising

in Malta.

      The facts of the case, as they have been submitted by the

applicants, may be summarised as follows:

A.    The particular circumstances of the case

      On 24 March 1985 the Sunday Times published the following letter

in its readers' column under the title "A fishy story":

      "SIR, - While doing the family shopping, the other day, I

      overheard a customer asking for a tin of tuna fish. The

      grocer proudly produced a tin, bearing a familiar brand

      name, from beneath the counter. Sensing that my wife would

      appreciate the endeavour, I promptly asked for a dozen

      tins. On being politely told that I was only allowed a

      maximum of three tins, I graciously accepted them.

           Whilst my wife was helping me to stow away the goods,

      she asked me why on earth I had purchased three tins of

      sardines. Taking a closer look I was surprised to see  that

      it was indeed "sardines" I had purchased. I wondered why

      the grocer had so stingily allowed me to buy only three

      tins and therefore decided to open one of them. Sure enough

      a solid packed tin of tuna fish lay before my eyes. After

      some homework, I feel that some pertinent questions arise:

           (1) Tuna fish is being sold as "sardines", quite

      clearly a case of misrepresentation if ever there was one.

      Do we have the equivalent of a Trade Description Act?

           (2) The brand name used is Japanese and therefore

      cannot be imported (even though, as in this case, it is not

      made in Japan).

           (3) Tuna fish is a commodity failing within the Bulk

      Buying Scheme and presumably contributes toward the Price

      Stabilisation Fund. Has the importer of the "sardines"

      (sive tuna) concerned effected any such contribution?

           (4) The "sardines" in question cost 28c, while a can

      of tuna fish of the same size (7 ozs.) retails at 32c. This

      is another proof, it proof were needed, of the raw deal the

      Maltese consumer is receiving thanks to the Bulk-Buying

      Scheme.

           (5) Why is it that Government-imported tuna fish is so

      scarce while a private entrepreneur seems able to supply it

      without difficulty?

           An official reply to the above questions would not be

      amiss.

                                                  Yours truly,

      Hamrun.                                        VIGILANT"

      Within 24 hours from the publication of the letter, the

Department of Trade asked the representatives of Paolo Bonnici Ltd, the

only company which imported and distributed solid pack sardines in

Malta, to provide explanations. Moreover, it withdrew the company's

import licences of sardines until the completion of the investigation.

      Paolo Bonnici Ltd sued the second applicant, as editor of the

Sunday Times, for commercial libel under Article 29 of the Press Act.

The action was heard by the First Hall of the Civil Court which on

24 May 1990 pronounced against the second applicant. The court

considered that the plaintiffs had established that the letter

published in the Sunday Times referred to their business and that it

contained false information. The second applicant, by publishing the

letter, had adopted it, for the purposes of the law, as his own. If the

second applicant had been duly diligent, he would have known that the

letter was false and that it was likely to cause harm to the

plaintiff's business. The plaintiff "not only established the

potentiality of harm which he might suffer, but brought sufficient

proof to show that his import licences, which were pending, were

withdrawn." The court, taking into account the amount of damages caused

by the article, the type of the article and the fact that it did not

mention the name of the importer and the product, decided to condemn

the second applicant to pay the plaintiff 250 liri as damages as well

as judicial expenses.

      The second applicant appealed. In a judgment pronounced on

26 May 1992, the Court of Appeal upheld the decision of the First Hall.

The appeal court considered that, contrary to what the second applicant

had argued, the law did not require dolus. It was sufficient if a

person was negligent and failed to exercise the diligence required by

law. The potentiality of damage was more of an objective rather than

subjective element. The applicant had not verified the facts stated

before publishing the letter. Moreover, there was no doubt that the

facts were likely to cause harm, since it had been alleged that an

importer was giving a false indication to his product in breach of

administrative regulations and the commercial code. In fact damage had

been done. It occurred immediately after the publication of the false

declarations and consisted of the official administrative measures

taken against the plaintiff.

      Following this judgment, both applicants instituted civil

proceedings for human rights redress before the Civil Court. They

argued that the second applicant "could be held to blame if his

negligent act caused damage. (However, i)t would be unfair and in

violation of freedom of expression if an editor was held to blame for

an act of the Government. An editor should not be responsible if the

Government irresponsibly abused its discretion in issuing and

withdrawing licences and inflicted damage to an importer unjustly."

      On 25 February 1994 the First Hall of the Civil Court rejected

the applicants' action on the ground that Paolo Bonnici Ltd had every

right to sue for libel and that the Government's act was irrelevant.

      The applicants appealed against the judgment of 25 February 1994

to the Constitutional Court. In a judgment delivered on 15 May 1995 the

Constitutional Court considered that the judgments of 24 May 1990 of

the First Hall and of 26 May 1992 of the Court of Appeal did not

support the applicants' view that the Government had abused its powers

by taking measures after the publication of the letter in the Sunday

Times. The above-mentioned judgments had not gone into the matter

whether the Department of Trade had acted abusively by cancelling the

import licences of Paolo Bonnici Ltd. This was not at issue since the

Government authorities were not parties to the proceedings. The second

applicant had not alleged in the proceedings for libel that the

Department of Trade had acted abusively and arbitrarily as he did in

his complaint under the Constitution. It was not the task of the

Constitutional Court to say whether the Government's act was correct

or abusive.

      The Constitutional Court considered that it should only take into

account that the two above-mentioned judgments had not declared the

Government to have acted abusively or irresponsibly. These two

judgments said that, after the publication of the letter, the

Government took administrative measures which badly affected the

business of Paolo Bonnici Ltd. This had been mentioned with a view to

establishing the element of damage which was required under Article 29

of the press Act. Actual damage had been shown to have ensued and not

just the potentiality of damage. Therefore, it was not possible to

maintain that the two judgments penalised the applicants for abuse of

power by the Government. There was absolutely no connection between the

fine of 250 liri and the damages of over 12,000 liri which Paolo

Bonnici Ltd suffered as a result of the measures of the administration.

In the light of all the above, the Constitutional Court upheld the

judgment of 25 February 1994 of the First Hall of the Civil Court.

B.    Relevant Domestic Law

      Article 29 of the Press Act provides as follows:

      Whosoever, by any means mentioned in section 3 of this Act,

      shall publish any statement which he knows or with due

      diligence could have known to be false  and which is likely

      to damage any business concern or other property, shall be

      liable to pay, in addition to the damages which may be due

      under any law for the time being in force in respect of any

      actual loss or injury, a sum not exceeding

      two thousand liri to be fixed by the competence court.

COMPLAINTS

      The applicants complain that the finding of the domestic courts

that they were responsible in damages to Paolo Bonnici Ltd constitutes

a violation of their right to freedom of expression under Article 10

of the Convention. They stress that, according to the judgments in

question, a newspaper is responsible in damages not only for the

consequences of its negligent or reckless reporting, but also for the

consequences of abuses of power committed by the public authorities.

The applicants further submit that the motives of the withdrawal of the

licences from Paolo Bonnici Ltd were political, since the directors of

that company were identified with the opposition party.

THE LAW

      The applicants complain that the finding of the domestic courts

that they were responsible in damages to Paolo Bonnici Ltd constitutes

a violation of their right to freedom of expression under Article 10

(Art. 10) of the Convention.

      The Commission recalls that Article 10 (Art. 10) of the

Convention, insofar as relevant, provides as follows:

      "1.  Everyone has the right to freedom of expression.  This

      right shall include freedom to hold opinions and to receive and

      impart information and ideas without interference by public

      authority and regardless of frontiers. ...

      2.   The exercise of these freedoms, since it carries with it

      duties and responsibilities, may be subject to such formalities,

      conditions, restrictions or penalties as are prescribed by law

      and are necessary in a democratic society, in the interests of

      national security, territorial integrity or public safety, for

      the prevention of disorder or crime, for the protection of health

      or morals, for the protection of the reputation or rights of

      others, for preventing the disclosure of information received in

      confidence, or for maintaining the authority and impartiality of

      the judiciary."

      The Commission further recalls that, in accordance with the case-

law of the Court, information of a commercial nature is not excluded

from the scope of Article 10 (Art. 10) of the Convention (Eur. Court

HR, Markt Intern Verlag GmbH v. Germany judgment of 20 November 1989,

Series A no. 165, p. 17, para. 26). An interference with the right to

impart information infringes the Convention, if it does not satisfy the

requirements of paragraph 2 of Article 10 (Art. 10-2). It should,

therefore, be determined whether it was "prescribed by law", whether

it pursued one or more of the legitimate aims set out in that paragraph

and whether it was "necessary in a democratic society" to achieve such

aims (see Markt Intern Verlag GmbH v. Germany judgment, op. cit., pp.

17-18, para. 27). The Contracting States have a certain margin of

appreciation in assessing the existence and extent of the necessity of

an interference, but this margin of appreciation is subject to a

European supervision as regards both the legislation and the decision

applying it, even those given by an independent court. Such a margin

of appreciation is essential in commercial matters. The review

exercised under the Convention must be, therefore, confined to the

question whether the measures taken on the national level are

justifiable in principle and proportionate (see Markt Intern Verlag

GmbH v. Germany judgment, op. cit., pp. 19-20, para. 33). However, the

impugned court decision must be looked in the light of the case as a

whole (see Markt Intern Verlag GmbH v. Germany judgment, op. cit., p.

20, para. 34).

      The Commission notes that it was the second applicant who was

condemned, in his capacity as editor of the Sunday Times, to pay

250 liri in damages to Paolo Bonnici Ltd. Although the first applicant

was also the editor of the above-mentioned newspaper and although he

instituted together with the second applicant civil proceedings for

human rights redress before the Civil Court, he was not a party to the

first set of proceedings for damages. However, the Commission does not

consider it necessary to decide whether the first applicant can claim

to be a victim of a violation of the Convention, within the meaning of

Article 25 (Art. 25) thereof, because the application is in any event

inadmissible as manifestly ill-founded for the reasons stated below.

      The Commission considers that the award of damages in commercial

libel resulting from the publication of a letter in the Sunday Times

of 24 March 1985 constituted an interference with freedom of

expression. It also considers that this interference was prescribed by

a law within the meaning of paragraph 2 of Article 10 (Art. 10-2),

Article 29 of the Press Act, and that it pursued one of the legitimate

aims set out in that paragraph, the protection of the reputation or

rights of another, the Paolo Bonnici Ltd. The Commission must,

therefore, examine whether the interference was necessary in a

democratic society.

      The Commission notes in this connection that the applicants do

not dispute that the information contained in the letter they published

on 24 March 1985, namely that tins of sardines traded in the local

market had been found to contain tuna fish, was false. Furthermore, the

Commission considers that the domestic courts could have reasonably

concluded that the information was likely to cause damage to the

plaintiff company in the action for damages, since it was the sole

importer of tins of sardines at the time. Moreover, the Commission

notes that the Constitutional Court in its judgment of 15 May 1995

concluded that, given the amount of damages awarded, the courts had not

penalised the applicants for the action taken against the plaintiff

company by the Department of Trade upon publication of the letter in

question. As the Constitutional Court observed, the damages caused to

the plaintiff company by the revocation of its import licences by the

Department of Trade amounted to 12,000 liri and not to 250 liri which

was the amount of damages awarded in the libel proceedings.

      In the light of all the above and taking also into consideration

the nature of the award, the Commission considers that is has not been

established that the measures taken on the national level were not

justifiable in principle and disproportionate. It follows that, in the

particular circumstances of the case, it was within the State's margin

of appreciation for its courts to have awarded the particular amount

of damages and it follows that the third requirement of paragraph 2 of

Article 10 (Art. 10), that the interference be necessary in a

democratic society, has also been complied with.

      As a result, the Commission concludes that no appearance of a

violation of Article 10 (Art. 10) of the Convention is disclosed. The

applicants' complaint must, therefore, be rejected as manifestly ill-

founded under Article 27 para. 2 (Art. 27-2) of the Convention.

      For these reasons, the Commission, unanimously,

      DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                        of the First Chamber