Communicated on 5 February 2021 Published on 22 February 2021

FIRST SECTION

Application no. 20783/20 Steve MALLIA and Ariadne MASSA against Malta lodged on 19 May 2020

STATEMENT OF FACTS

The applicants, Mr Steve Mallia and Ms Ariadne Massa, are Maltese nationals, who were born in 1971 and 1973 and live in Għargħur and Sliema respectively. They are represented before the Court by Dr P. Micallef Grimaud, a lawyer practising in Valletta.

The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The first applicant was, at the time of the facts, the editor of The Sunday Times of Malta , a prominent newspaper, the second applicant is a journalist by profession.

The article entitled “Patients Swindled in Scam” penned by the second applicant was published on 22 August 2010 in the mentioned newspaper.

The article reported a scam by a nurse who was working in the general public hospital in Malta (hereinafter ‘ MDH ’ ), the largest and most frequented hospital which is free to all Maltese nationals and Malta taxpayers. The nurse occupied a post within the structures of the union that represents the nurses and midwives in Malta - the Malta Union of Midwives and Nurses (hereinafter “MUMN”). According to the article, the nurse (and a salesman) swindled vulnerable patients out of hundreds of euros by offering therapy not provided by the state and leading them to believe it was free, then handing out exorbitant bills.

The applicants chose not to publish the name of the nurse involved, mainly for three reasons: Firstly, because investigations were ongoing; secondly, because the applicants had not managed to obtain the involved nurse ’ s reaction prior to publication and thirdly because there was a prominent surgeon who happened to have the same uncommon name and surname as the nurse involved and the applicants felt that by publishing the name of the nurse involved they might create unwarranted confusion with the surgeon.

The article however did state in the sub-heading “Top MUMN official being investigated” and in the body of the article that “The Sunday Times has learnt this scam involves a nurse who is employed in a managerial position at MDH and occupies a top post within the structures of the Malta Union of Midwives and Nurses.”

On learning of the article, the President of the MUMN contacted the second applicant noting that none of the top officials (namely its four executive members) had been involved. The second applicant confirming that none of the executive members had been involved, informed him that the nurse in question was an official of MUMN as he was a Chairman on one of its committees.

Subsequently the MUMN issued a Press release to clarify that none of its executive board members were involved.

On 24 August 2012 the Health Ministry also issued a Press Release, informing the public of the ongoing investigation in relation to the nurse.

Four executive members of MUMN, namely its president and vice president, its executive secretary and its financial secretary (but not the nurse involved in the scam) felt that this article was libellous in their regard since, in their view, the article could be read and construed as referring to them. They consequently sued the applicants for libel claiming that they had been negatively impacted by the article, for example, people had called them (including international bodies) to enquire whether any of them had been involved or requiring explanations. Its President also alleged that it had a negative impact on negotiations with the Government concerning an ongoing industrial action at the time.

It was not disputed that the nurse at issue occupied the role of Chairperson of one of the committees of the MUMN and that he was investigated in relation to the scam. The point of contention was the use of the words “top MUMN official” and “top post within the structures of the Malta Union of Midwives and Nurses” when referring to the nurse who was being investigated. The applicants defended themselves on the basis that this was a value judgment, a conclusion which they drew in good faith from the facts that resulted to them after having searched the website of the MUMN. Moreover, the article did not make any allegations in respect of the defendants, who were not identifiable in the article. It had been a mere informative article based on a report made by the Health Ministry which led to an investigation by the Police – thus a matter of public interest.

(a) First-instance

On 17 September 2012 the Court of Magistrates found in favour of the four plaintiffs, rejecting the applicants ’ defence, ordering the latter to pay the former damages under the Press Act amounting to a total of 13,500 euros (EUR) to the four defendants.

In particular, the Court of Magistrates considered there had been no good faith on the part of the second applicant, but rather there had been collusion between her and the Ministry of Health against the MUMN, intended to tarnish the executive members ( it-tmexxija ), that is to say, the plaintiffs. The court could not understand how a journalist of her experience could proceed to publish such an article without attempting to contact the MUMN for comment. Had she so attempted but remained without reply, it could be said that she had fulfilled her duty, but this was not the case. She opted to publish without verifying the facts she was alleging and knowing that the nurse was not part of the executive board members.

According to the Court of Magistrates this was malicious behaviour aimed at sensationalism, without bearing in mind the repercussions on the persons mentioned, whether directly or indirectly, which tarnished the reputation of journalism generally. The fact that she published the article on Sunday 22 after getting to know the facts on Friday 20 August showed that her only intention was to publish the news before other newspapers and not to investigate the matter in detail. The first applicant failed to ensure that his journalists exercised their role with the requisite care and thus was also responsible. Further, there appeared to have been no attempt to correct the article or to make it clear that the executive members had not been involved.

The Court of Magistrates considered that the second applicant ’ s argument that, in her view, the chairman of a committee was a top official, was totally fallacious and only showed her unawareness of such structures. It noted that the MUMN had fourteen sub committees assisting the executive who led the union. The Court of Magistrates reiterated its conviction that the second applicant was acting in bad faith and pursuing her own agenda to shed a bad light on the MUMN who had been in an industrial dispute with the State. This, in its view, was not journalism but defamation.

As to the applicants ’ defence it considered that their intention was irrelevant, what was of relevance was whether the plaintiffs were identifiable. In the Court of Magistrates ’ view, there was no doubt that “top official” would have been understood as the persons leading the union. Referring to the balance to be struck between the right to reputation and freedom of expression, and to the tolerance towards genuine mistakes, the Court of Magistrates considered that the second applicant had wilfully erred thus she could not benefit of any protection to her right to freedom of expression. The same applied to the first applicant, though to a lesser extent.

In awarding damage, the Court of Magistrates felt the need to send a message to journalist, telling them that if they fail to fulfil their duties, they would have to suffer the consequences. It thus ordered the second applicant to pay EUR 12,000 in damage and the first applicant to pay EUR 1,500.

(b) Appeal

The applicants appealed. On 14 January 2015 the Court of Appeal rejected the appeal and confirmed that the article was libellous, but it decreased the damages to EUR 4,000.

The Court of Appeal reiterated that a balance had to be struck between the right to reputation and that of expression, however false facts aimed at putting an individual in disrepute remained punishable by law. Under Maltese law three elements were to be examined for the determination of libel proceedings; i) an objective reconstruction of facts; ii) an evaluation of the content of the article iii) the right to criticise, which must however be contained and made in correct and moderate terms, avoiding virulent attacks.

In particular, it considered that there was no doubt that the reporting was principally investigative and informative, and contained no injurious remarks, nor had there been any evidence that the article was intended to defame anyone in particular. The circumstances of the story had also been truthful save for the reference to “top MUMN official”. The question that needed to be answered was whether that terminology could have led the reader – “a right-thinking person” - to identify the plaintiffs or any one of them. According to the Court of Appeal the answer was in the affirmative, such terminology could only have referred to the four plaintiffs as the executive board of the MUMN, because no ordinary reader would have imagined that the union had sub-committees and that the nurse at issue could have been part of any of those sub-committees. The intention of the applicants was irrelevant.

According to the Court of Appeal, when using the term “top official” the second applicant abandoned her investigative objective and turned to sensationalism which resulted in her implicating innocent people in a serious case of alleged fraud. Thus, the Court of Appeal had no doubt that by using that terminology the second applicant was trying to attract the reader and had not been careful to report accurately the information relayed to her. In the Court of Appeal ’ s view, the ordinary reader could easily identify the plaintiffs, as the wording could only have referred to the “principal members of the union, that is the top members of the executive”. Such an identification would have been natural and would not have required complex processes of elimination of others or any other analysis and would have identified with certainty any one of the plaintiffs as the nurse at issue, irrespective of the intention of the applicants. The applicants had failed to thoroughly scrutinise their publication and were therefore responsible for this failing.

In reducing the damage awarded, the Court of Appeal rejected what it considered as unproved and baseless assumptions of the Court of Magistrates as to any collusion and intention to harm the MUMN.

Following the judgment, on 13 July 2015 a seizure order was issued, and the applicants ’ assets were frozen until they paid the sums due.

On 13 May 2015 the applicants filed constitutional redress proceedings complaining that the above-mentioned judgments breached their fundamental right to freedom of expression.

(a) First-instance

By a judgment of 23 October 2017 the Civil Court (First Hall) in its constitutional competence found in favour of the applicants and awarded them damages in the amount of EUR 4,000 jointly.

Citing at length various decisions of the European Court of Human Rights, it recognised the public watchdog role that independent journalism played in a democratic society and emphasised the “triple test” for determining whether limitations to freedom of expression are legitimate and justified.

It considered that the interference had been lawful and pursued a legitimate aim, namely the protection of reputation. As to whether it was necessary in a democratic society, it considered that the story reported by the applicants was of public interest as it reported a fraudulent scheme on vulnerable and sick elderly patients. Its immediate publication was important to report the situation to the police for immediate investigation, as well as to alert and protect possible victims of the fraudulent scheme that was still ongoing at the time of publication. It held that the reporting was so important that the Minister for Health had immediately reported the matter to the criminal courts for immediate investigation and eventual prosecution. It had therefore been imperative for the applicants not to lose time and to publish the story immediately without waiting for a reply from the perpetrator of the scheme prior to publishing. It considered that the applicants had been prudent and had shown considerable restraint when they chose not to publish the name of the involved nurse once he could not be contacted, and also in view of the fact that his name could have tarnished the reputation of a prominent surgeon.

It concluded that the article could not be considered as an attack against the four executive MUMN officers or anyone of them. The court was of the view that the description of “top official” was not a statement of fact but a value judgement made by the journalist about the position of the person allegedly involved in the crime reported. The journalist had not said that the nurse occupied an executive post, but only that he occupied a top post. It was not contested that the nurse had in fact been the chairperson on the MDH Group Committee. It was therefore reasonable for the applicants to refer to the nurse as an officer occupying a “top post” within the MUMN because a person that occupies the position of chairperson on a committee, and especially a committee of the importance as the one in question, can reasonably be described as a person that occupies a high position within the organisation. Thus, that description, which amounted to a value judgment, had a sufficiently close connection with the facts of the case. Further there was no evidence, and it definitely could not be determined, that this discretion was misleading or a gratuitous attack. From the evidence, it transpired that the applicants were acting in good faith – it was therefore wrong for the Court of Appeal to consider this to be irrelevant. The first applicant had immediately accepted to publish an explanatory statement by the MUMN clarifying that none of the four executive officers that filed the libel suit were the nurse who was the subject of the article. The second applicant had also applied correct journalistic practice by relying not only on her source, who she considered reliable, but also on the documentation she obtained (receipts of payment) which substantiated the information provided to her – that evidence led to an investigation and later criminal proceedings were opened against the alleged perpetrators. Thus, the duties and obligations of journalist had been fully complied with.

In the court ’ s view had it to consider that the restriction on the right to freedom of expression of the applicants was justifiable, such a decision would have “a chilling effect” on the Maltese press, because journalists would start thinking twice before publishing articles of investigative journalism in good faith if then they could be held liable to pay damages for the defamation of persons who were not mentioned and even less identified.

It awarded damages of EUR 2,000 to each applicant reflecting the sum they had been fined by the Court of Appeal.

(b) Appeal

The Attorney General appealed and the applicants cross-appealed limitedly to the award of damage.

By a judgment of 29 November 2019 the Constitutional Court upheld the appeal and held that the decision of the Court of Appeal, which had confirmed the decision of the Court of Magistrates, did not breach the applicants ’ fundamental human right to freedom of expression.

The Constitutional Court disagreed with the contention that the expression “top official” was a value judgment. In its view the position of that person within the MUMN constituted a statement of fact. Thus, there was nothing that could be interpreted or could be the subject of opinion. So much so that it transpired from the evidence of the second applicant that this information was available on the website of MUMN and she declared it as a state of fact. Further, the first applicant had testified that he was not very familiar with the structure of the MUMN as he became after the MUMN instituted the court case. In the Constitutional Court ’ s view, it was incumbent on the applicants to carry out further investigations as to the structure of the MUMN by asking the MUMN itself or wait for a response from the nurse concerned. Instead they rushed to publication without caution, knowing it would have a negative effect on the union. Furthermore, if the position of that person within the MUMN was not important for the message that the applicants wanted to convey, then it was opportune for the reference to the “top post” to be left out. Thus, the impugned statements had not been written in good faith but were intended, as the Court of Appeal held, to draw the attention of the readers.

The Constitutional Court noted that the second applicant had testified ‑ that she had frequently been in contact with the four MUMN officials to verify other stories in the past – however, for some reason, she had failed to do so this time round, opting to verify information via the MUMN website. According to the Constitutional Court, this absence of verification constituted a breach of journalistic duties and ethics. In its view nothing indicated that the article had to be published on that date and not later after verification. Moreover, the reference to top official had added nothing to the message which needed to be conveyed, especially since, in the alleged wrongdoing, the nurse had not been acting in his function as MUMN official, but only as an employee of the MDH. Thus, in the Constitutional Court ’ s view the applicants could not rely on their right to freedom of expression, given their lack of verification which led readers to look at other individuals who had not been connected to the story.

COMPLAINT

The applicants complain under Article 10 of the Convention that they had suffered a breach of their right to freedom of expression when they had been made to pay damages for the use of the word “top” management which they considered a value judgment, but which the domestic courts had considered to be a statement of fact, which was libellous.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicants ’ right to freedom of expression contrary to Article 10 of the Convention?

2. In particular, did the domestic courts sufficiently examine i) whether there existed an objective link between the impugned article and the persons suing in defamation which is a requisite element for an Article 10 examination? ii) to what extent the attack on the plaintiffs ’ reputation attained the level of seriousness and caused them prejudice?

3. Did the domestic courts, in particular the Court of Appeal, justify its findings against the applicants by means of relevant and sufficient reasons and applied standards which were in conformity with the principles embodied in Article 10? Further, was the characterisation by the Constitutional Court of the applicants ’ utterances as statements of fact, rather than value judgments, justified?