Communicated on 27 August 2015

FIFTH SECTION

Application no. 45791/13 Michael FALZON against Malta lodged on 8 July 2013

STATEMENT OF FACTS

The applicant, Mr Michael Falzon , is a Maltese national, who was born in 1945 and lives in Naxxar . He is represented before the Court by Dr T. Comodini Cachia , a lawyer practising in Valletta .

A. The circumstances of the case

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

1. Background to the case

The applicant has served as a Member of Parliament between 1976 and 1996, and he served as a Minister between 1987 and 1996. Even before he was elected to Parliament he had already established himself as a political commentator on the media and regularly authored opinions related to national politics which were published in national newspapers. Upon his retirement from Parliament the applicant became a weekly opinion writer in the newspaper “ Maltatoday ” as well as another weekly paper.

On 6 May 2007, Dr. Micheal Falzon (referred to as MF, for ease of reference – as he has the exact same name as the applicant) the deputy leader of the Malta Labour Party (MLP), delivered a speech in public, which was reported on the national media. During the speech he informed the public that he had received an anonymous email and threatening letters, in respect of which he had complained directly with the Police Commissioner ( CoP ). He further referred to the discussion he had had with the latter during which he had asked him to investigate the issue.

On the same day KSN, a journalist, published an article in the newspaper “ illum ”, entitled “email sent to MF brings an admirer before the Police”. The article started off by stating that an innocent email sent to the deputy leader of the MLP was passed on to the police who in turn identified the sender and subsequently questioned him. It concluded with the statement that, when MF was asked about him reporting the matter to the Police, the deputy leader of the MLP replied that “he would not confirm nor deny” that he was aware of the case.

On 13 May 2007 Maltatoday published an opinion by the applicant entitled “Policing one ’ s enemies”, spurred by the above mentioned speech, in which the applicant queried the manner in which the two main political parties perceived the police force. The article ’ s opening paragraph read as follows:

“During a recent short visit to London, I had the opportunity to watch the film ‘ The Lives of Others ’ (original title: Das Lieben Anderen (sic)) an Academy Award-winning German movie, set in the 1984 cultural scene of East Berlin, monitored by secret agents of the Stasi: the secret police of the former German Democratic Republic (East Germany). The film puts the methods of the Stasi at the centre of the plot and as a result clearly exposes their repulsive behaviour.”

Other relevant parts of the article, read as follows:

“Using the police in a different context and for the purpose of controlling people ’ s freedoms is the basic notion of the typical police state, even if you insert the word ‘ democratic ’ in your country ’ s official title.”

...

“I say this with deep regret, but I can only be seriously perturbed by the ease with which MLP Deputy Leader Michael Falzon persuaded the Commissioner of Police to investigate the source of a trivial and unimportant anonymous e-mail that he had received. More so, when this e-mail could only have been misguidedly considered ‘ suspicious ’ , and even then in an absolutely far-fetched way, in the context of the infighting and internal feuds within the MLP.

According to what Dr. Michael Falzon said, the Police Commissioner – who apparently is on familiar first name speaking terms with Dr. Falzon – asked whether he would proceed in the same fashion whether the culprit eventually proved to by X or Y; implying that the Commissioner was offering to act in a discriminatory way according who the ‘ guilty ’ person was.

Matters are even more worrying because when the police successfully traced the original writer and dispatcher of the e-mail, they impounded his computer and obliged him to go and sign daily at the Police Headquarters even though he was not accused of any crime.

Has not MLP Deputy Leader Michael Falzon successfully used the Police Force to control the freedom of an innocent, law-abiding private citizen whom he suspected could be a political enemy? And has not somebody in the police force abused of his powers by condescending to do this for the advantage of the faction led by Michael Falzon in the MLP ’ s internal squabbles? Why should the police force interfere in Labour ’ s internal politics where, it is obvious, there are too many cooks spoiling the broth?”

...

“Yet the ease with which the MLP Deputy Leaders phones him up to complain, and – even worse – the ease with which this leading politician is provided with a service that cannot be linked in any way with the pursuit of ‘ criminality ’ – as we know it – makes one wonder.”

...

“These events seem to indicate that within Labour there are people who can influence and interfere in decisions taken by the Police Force. This is happening when they are still in Opposition. Asking what would happen in this area, once they are in government is, therefore, a legitimate question. ”

...

“So what is the Government doing about this? Does the MLP Deputy Leader who happens to be my namesake, carry more weight and influence with the Commissioner of Police than the Deputy Prime Minister who is politically responsible for the Police Force?”

...

“I firmly believe that Tonio Borg [then Minister of Interior] should set up a high powered inquiry with the specific task of getting to the bottom of this sordid soap opera. He owes it to those who dedicated the best years of their life to ensure the personal freedom of each and every citizen of Malta. He owes it to all present and future Maltese citizens who did not live the past – so that they will live a future where no one controls their freedom and hence their lives.”

2. Libel proceedings

On 17 July 2007 the deputy leader of the MLP instituted libel proceedings against the applicant (and the editor of the newspaper), under Article 28 of Chapter 248 of the Laws of Malta (see relevant domestic law), and sought damage, considering that the above mentioned extracts of the article where defamatory.

By way of defence the applicant claimed that (a) the published article contained his opinion and consequently consisted of a fair comment and the expression of a value judgment, (b) any facts declared were substantially correct and based on what had been declared publicly by MF himself a few days prior to the impugned publication and (c) the claimant was a person occupying a public office and consequently subject to a wider acceptance of criticism.

During the proceedings the Court of Magistrates heard testimony from the claimant, the CoP , the applicant, the editor (SB) as well as two other journalists (ABD and KSN). It saw documentation submitted consisting of an email exchange between the MLP deputy leader and a third person (JB), as well as the transcript of the deputy leader ’ s speech and copies of two articles both entitled “email sent to deputy leader brings an admirer before the Police” (one having been published online and one in print).

The CoP testified as follows (as summarized by the first-instance court):

- He denied that MF had persuaded him or influenced him in doing his job in connection with the case at issue;

- MF had requested and obtained a normal appointment with the CoP ; when they met MF showed him a letter which the CoP considered to be “injurious and containing threats” towards MF; the latter requested the CoP to investigate the content of the letter;

- MF also informed the CoP that he had received an email, which was later passed on to the CoP , following an invitation to do so;

- The CoP asked MF whether he intended to take proceedings against the sender of the email, in so far as such a crime would require the complaint of the injured party;

- The documents which were passed on to the CoP were in turn passed on to the Criminal Investigation Department (C.I.D.) for further investigation, and the CoP had no further contact with MF concerning the case, which was not given any particular priority on his part.

The applicant failed to make written submissions within the stipulated time-frame, and his late submissions were not accepted by the court that proceeded to judgment.

By a judgment of 4 May 2010 the Court of Magistrates found the applicant guilty of having defamed the deputy leader of the MLP and was condemned to pay him 2,500 euros (EUR) in damage. Costs were also to be paid jointly by the applicant and the editor (who was also ordered to pay 1,000 euros in damage).

The court referred to the CoP ’ s witness testimony to explain the factual situation. In its view, w hile noting that public figures such as politicians were subject to wider limits of acceptable criticism , they were nevertheless protected under Article 10 § 2 - their protection having to be weighed in relation to the interests of open discussion of political issues. The court considered the article defamatory as it tarnished and impinged on the claimant ’ s reputation. It rejected the applicant ’ s defence noting that it had not been proved that i ) MF had manipulated the CoP due to the political office that he held in the party in which he militates ii) that with his actions MF had offended the Police Force since he used the Police Force for his personal aims iii) that MF was some deus ex macchina who pulls the strings of the Police Force, from behind the scenes, to reach his aims.

The applicant appealed.

By a judgment of 6 October 2010 the Court of Appeal (in its inferior jurisdiction) rejected the appeal and confirmed the first-instance judgment. It considered relevant to analyse and mention all the relevant evidence, which had not been referred to by the first-instance court:

- MF, as claimant, submitted that the reader was induced to believe that he had persuaded the Police to harm someone, when all he had done was filed a report requesting that the anonymous letters and emails he had received be investigated.

- The court referred also to the statements made by the CoP (see above).

- Further, the applicant had explained that in his view the email received by MF was innocent and thus MF had reacted disproportionality. According to the applicant, from the speech delivered by MF publicly, it transpired that he was on friendship terms with the CoP , indeed if it were not so MF would have reported the incident at a police station like a normal citizen, and not with the CoP. In his view it was natural to question whether MF used the CoP in connection with internal affairs of the party. Even when being cross-examined he reiterated that influence had been exerted by MF on the CoP.

- The editor testified that in his opinion the speech delivered by the deputy leader of the MLP indicated that the latter had put pressure on the CoP to investigate the matter, when he had met up with him for this purpose.

- In reply to a question in cross-examination, as to whether MF had put pressure on the CoP , KSN replied that he was aware that a report had been lodged concerning the email, and on the same day of publication, MF had declared that he was authorising the CoP to institute proceedings against whoever turned up to be the culprit.

Having examined all the relevant evidence and thus obtained an idea of the circumstances preceding and accompanying the article, the Court of Appeal was of the view that the applicant ’ s assumption could not be considered as fair comment. In the eye of the ordinary reader, the comments and criticism made by the applicant could not be considered objectively reasonable, in good faith and balanced, in so far as they were based on an assumption – that MF had influenced the CoP with an aim of controlling people ’ s freedoms – and thus the attack on MF had exceeded the limits of just criticism. MF had every right to file a report and the fact that he was politically active did not justify such an attack which had not been corroborated by factual evidence. It considered that even though manifestation of free expression was a consolidated principle, it was expected to occur within those just limitations of the canon of objective veracity of facts and content, as elaborated by the most progressive doctrine and jurisprudence on topical issues and the exercise of criticism.

3. Constitutional redress proceedings

On 9 March 2011 the applicant instituted constitutional redress proceedings complaining that he had suffered, inter alia , a breach of Article 10 of the Convention as a result of the judgments in the libel proceedings. He argued that his opinion piece consisted of criticism, a legitimate manner of expressing an opinion about the work of a public figure, as was allowed in a democratic society - noting that the extensive protection given to such a public figure served to silence free expression. He further claimed that the ordinary courts had referred to insinuations and allegations which had not been made or implied by the applicant in his article such as the statement by the Court of Magistrates to the effect that MF “manipulated the CoP or that the latter was subjected to pressure which impeded the exercise of his function” as well as that to the effect that MF “was a deus ex macchina pulling the strings of the police”. The applicant emphasized that these were gratuitous inventions by the ordinary court which were not mentioned in the article.

By a judgment of 30 March 2012 the Civil Court (First Hall) in its constitutional competence rejected the applicant ’ s claims.

Considering that the applicant was attempting to obtain a revision of the ordinary proceedings, it noted that it was not quite true that the applicant had never implied that MF had “manipulated” the CoP – indeed his article had precisely questioned “has not the MLP deputy leader MF successfully used the Police Force to control the freedom of an innocent law-abiding private citizen whom he suspected could be a political enemy?”. In any event even if the applicant considered the statements made by the Court of Magistrates, in its conclusive comments, to be invented, this did not bring about a breach of his Article 10 rights.

The court noted the comparison with which the applicant had started his article and his relating of MF ’ s behaviour, which resulted in an individual being investigated and subsequently having his computer seized. In that conte xt he had asked whether MF had “used” the Police against a political opponent. The applicant criticised the CoP for following indications made by MF, to the extent that the applicant called on the Minister of Interior to look into the matter. Indeed the CoP was also subject of the applicant ’ s criticism.

According to the court the word ‘ uses ’ did not mean manipulate as implied by the Court of Magistrates, but in the context of the article at issue, it nevertheless implied an element of abuse. The criticism against MF was in the sense that he had taken advantage of his political position to put pressure on the Police for the latter to take action in persecuting an innocent citizen. The court considered that it was legitimate for a victim of a crime to complain to the police, and then it was for the police to act on the matter. Further, the initial reference to the “Stasi” in the opening of the article was regrettable - even if not intentional, it gave the impression of a comparison.

In its view even accepting that a public person was subject to greater limits of acceptable criticism, given the article at issue, the ordinary courts had not failed to reach a fair balance between the competing rights.

The applicant appealed.

By a judgment of 11 January 2013 the Constitutional Court rejected his appeal.

It noted that the ordinary court judgments and the penalty inflicted constituted an interference with the applicant ’ s rights under Article 10, which had been prescribed by law (Article 28 of the Press Act). It highlighted the importance of free expression for the press, nevertheless it noted that it had to act within limits and it had to respect certain duties and responsibilities, particularly in respect of the reputation of third parties. Admitting that politicians where subject to higher limits of acceptable criticism, it nevertheless noted that they remained holders of their right to the protection of their reputation. The quest for reasonableness and proportionality in such circumstances had to be seen against the background of the importance of public debate.

Noting the difference between facts and value judgments, the latter not being subject of proof, it considered that a person could not hide behind an opinion or value judgment to impute untrue facts to other persons. It considered that the Court of Appeal had reached a legitimate conclusion in finding that the applicant ’ s opinion piece contained declarations which assumed as a fact that the MLP deputy leader had illegitimately and abusively influenced the Police and also that the exercise of illegitimate and abusive pressure on the CoP had not been proved as a fact.

The Constitutional Court noted that while the article had contained a series of questions (in respect of which the applicant alleged it was for the reader to answer) , it had also contained assertions, some of which had not reflected the real facts, according to the Court of Appeal. Further, the Constitutional Court considered that just because an alleged fact was given the form of a question, this did not entail that it was no longer a factual assertion, but became a value judgment. Even the way the question was posed, namely “Has not MF...” clearly included a factual affirmation and blatantly invited a positive reply. Similarly, the quest “Does the MLP Deputy Leader who happens to be my namesake, carry more weight and influence with the Commissioner of Police than the Deputy Prime Minister who is politically responsible for the Police Force?” was nothing but an allegation of fact in the form of a question.

Lastly, the Constitutional Court noted that the amount of the fine had not been particularly severe, so much so that the quantum had not been appealed.

There was therefore no violation of Article 10.

B. Relevant domestic law

Section 3 of the Press Act, in so far as relevant, states that a press offence is committed by means of the publication or distribution in Malta of printed matter. Under Section 11 of the same Act, whosoever by such means libels any person, shall be liable to a fine upon conviction.

Section 28 of the Act reads as follows:

“(1) In the case of defamation, by any means mentioned in article 3, the object of which is to take away or injure the reputation of any person, the competent civil court may, 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, grant to the person libelled a sum not exceeding eleven thousand and six hundred and forty-six euro and eighty ‑ seven cents (11,646.87).

(2) 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 in case the action shall have been commenced before there was an opportunity of making or offering such apology:

Provided that the defendant shall not be allowed to make such proof in mitigation of damages if he has raised the plea of justification in terms of article 12.”

COMPLAINT

The applicant complains under Article 10 of the Convention that the domestic courts had failed to distinguish between facts and value judgments. Further, his criticism was directed towards a politician and concerned an issue of general interest, and thus no fair balance had been reached in the case at issue.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to freedom of expression, in particular his right to impart information and ideas on matters of public interest, contrary to Article 10 of the Convention?

2. Was the interference necessary in terms of Article 10 § 2?

3. In particular, to what extent are the duties and responsibilities inherent in the applicant ’ s activities relevant to his claim and to the State ’ s margin of appreciation in this field?