CONCURRING OPINION OF JUDGE BRATZA

1. I share the view of the majority of the Chamber that the applicant ’ s rights under Article 10 of the Convention were violated in the present case and would add only a few words on what I regard as one of the important grounds for the Chamber ’ s finding of violation, namely the fact that Sir Paul Boffa, who was held to have been defamed in the applicant ’ s letter, had died before the letter was written.

2. As someone originating from a jurisdiction in which a cause of action for defamation does not survive the death of the alleged wrongdoer or that of the defamed person himself, I admit to having difficulty with the idea that an action in defamation can lie at the instance of descendants of an individual years, and even decades, after the death of the person concerned. I accept, however, that in other jurisdictions, including Malta , such a cause of action exists and has not, as such, been questioned in the Court ’ s case-law.

3. The two cases referred to in the judgment were not in fact cases of defamation. Both were cases in which the impugned publication (in Editions Plon , the disclosure of confidential medical details of a head of state who had recently died and, in Hachette Fil ipacchi Associés, the publication of a photograph of the mutilated body of a political figure, shortly after his murder and funeral) had a direct and immediate impact on the private and family lives of the immediate family of the deceased.

4. In the case of defamation, the situation appears to me to be different: the defamatory statement, while doubtless affecting the reputation of the deceased ancestor, has in my view no direct impact on the private or family life of the descendants. The exposure of an individual in such a case to an action in damages for defaming the deceased ancestor of a family is likely to have a seriously chilling effect on the right of freedom of expression, particularly in a case where many years have passed since the death and the burden of proving the truth of the allegation lies on the defendant in any such action. In my view, even if such an action is in principle compatible with the requirements of Article 10, when striking the balance between the competing interests, the weight to be attached to the reputation of the deceased individual must diminish with the passing of the years and that attaching to freedom of expression must correspondingly increase.

5 . As noted in the judgment, Sir Paul Boffa, who was found to have been defamed in the applicant ’ s letter, died more than three decades before the impugned statement was published. While I readily accept that he was a greatly respected figure in Malta , I consider that any damage that may have been caused to his reputation by the letter was in the circumstances outweighed by the freedom of expression of the applicant guaranteed by Article 10 of the Convention.

DISSENTING OPINION OF JUDGE SCICLUNA

1. Having carefully examined the letter in question which purportedly deals with the topic of the bulding of a yacht marina at Xemxija, the paragraph in which the writer refers to Dr Boffa sticks out because of the allegation made in it.

2. In my opinion the interpretation given by the national courts to this paragraph was the correct one. Saying that permission was given during the Boffa administration for buildings to be built “because Dr Boffa wanted to build there” means that Dr Boffa had an interest in allowing the construction of buildings in the area. It cannot be understood as meaning that it was his administration that wanted to develop the area. Indeed the writer says that permission to build was given “during the administration of Dr Boffa” but then that it was given “because Dr Boffa wanted to build there”.

3. I disagree that any other interpretation could be given to the statement made by the applicant in his letter. If a different meaning was meant to be given by the applicant (viz. that Dr Boffa was in favour of the area being built up – “ ried li jinbena ” and not “ ried jibni ”) then that is what he should have said.

4. I agree with the principle enunciated in paragraph 38 of the judgment but the fact that the reference was to a former prime minister is in this case besides the point given that the applicant himself says that the national courts misunderstood what he had written.

5. The fact that Dr Boffa passed away more than three decades ago does not mean that any damage cannot be considered serious. Dr Boffa is still considered a highly respectable and honest politician and his heirs have an interest in upholding not only his honour, his reputation and his name but also that of the family as any defamation almost inevitably rubs off onto the family and this can lead to moral and material damage. These reasons, which were also indicated by the national courts, should be considered as relevant and sufficient reasons to justify the interference with the applicant ’ s right of freedom of expression.