Kevin Aquilina An Evaluation of the Diritto Di Cronaca under the Maltese Press Act
Kevin Aquilina is the Head of the Department of Media, Communications and Technology Law of the University of Malta. He holds a Doctorate of Philosophy in Law (Ph.D) from the London School of Economics and Political Science of the University of London, a Doctorate in Law from the University of Malta (LL.D) and a Masters in International Maritime Law from the International Maritime Organisation’s International Maritime Law Institute (LL.M). Professor Aquilina has held the office of Director General (Courts) and subsequently Chief Executive of the Broadcasting Authority. He drafted all broadcasting legislation between 1999 to 2013. Between 2011 and 2019, he was the Dean of the Faculty of Laws at the University of Malta. He also served as the Chairman of the Press Ethics Commission, Chairman of the Planning Appeals Board, Legal Advisor to the Planning Appeals Board, Member of the Environment and Planning Review Tribunal, Member of the Law Commission and Member of the Holistic Commission for the Reform of Justice Sector. Professor Aquilina has authored various books, written several reports for Maltese and foreign institutions, drafted many primary and subsidiary laws and published papers in edited books and articles in peer-reviewed journals, apart from various contributions to the print, broadcasting and new media.
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1. Introduction
W
e have inherited the notion of the diritto di cronaca in the Maltese Press Act,1 from the Italian legal system. Essentially, the term can be translated literally as ‘the right to report current affairs’. It actually means the right to publish correct news and current affairs (or information and ideas) on any matter in the public interest. This is not a unique concept found in the ius civile legal tradition as there are analogous notions to it in other legal systems. For example, the American legal system refers to ‘the right to publish public information’ whilst the European Court of Human Rights prefers to adopt the concept of ‘imparting information and ideas’ on all matters of public interest, provided that the information disseminated is true. Although these – and other expressions – may be considered similar, they are not necessarily identical and each one has its own nuances and vicissitudes. The purpose of this short contribution is to summarise selected judgments of the Maltese courts with a view to try to understand exactly the juridical nature of the institute of the diritto di cronica as applied in Maltese Press Act.
2. Select Maltese Press Law Judgments on the Diritto Di Cronaca 2.1 Introduction Maltese Press Law abounds with judgments referring to the diritto di cronaca, and, it is not possible to summarise all the court judgments on the topic. Hence, what will be considered in this short paper are selected judgments with the purpose of trying to arrive at the principal characteristics of the diritto di cronaca, for the latter right is not as simple and straightforward as the words themselves seem to imply. It has been developed by case law, originally in Italy, and then adopted in Malta. The diritto di cronaca is not specifically mentioned by these words (or their English or Maltese translation) as such by any Maltese law, including the defunct Press Act and the Media and Defamation Act, but it has been developed jurisprudentially. Indeed, it is thanks to the Maltese courts that this concept has been formulated, nourished and applied. Thus, although it derives from freedom 1 Press Act, Chapter 248 of the Laws of Malta (repealed by the Media and Defamation Act, Chapter 579 of the Laws of Malta).
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of expression and press law, these three words are not specifically inscribed in the Constitution or in ordinary law but, through the doctrine of necessary intendment, can be derived therefrom.
2.2 Select Judgments on the Diritto di Cronaca 2.2.1 Aquilina et vs Balzan et In Tony Aquilina and Tony Aquilina Limited vs Saviour Balzan and/or Matthew Vella,2 the Court quoted the Italian Court of Cassation3 which held that: ... il diritto di cronaca quale esimente della responsabilità per danni derivanti della lesion del diritto personale all’onore postula la ricorrenza delle seguenti condizioni:(a) la verità oggettiva della notizia pubblicata; (b) l’interesse pubblico alla conoscenza del fatto (cosi detta, pertinenza) (c) la correttezza finale dell’esposizione (cosi detta, continenza).
2.2.2 Galea vs Ghirxi In Advocate Dr. Louis Galea vs Frans Ghirxi, editor of the newspaper ‘The Horizon’,4 the defendant held that in his writing there were only facts which could be proved and an exercise of the diritto di cronaca as applied by Maltese and Strasbourg case law. However, the Court noted that in the instant case the defendant did not prove the facts referred to in his writing. The defendant had repeated what Ciro del Negro had told him even if 2 Aquilina Tony et vs Balzan Saviour et, Court of Appeal (Inferior Competence)1 November 2006, 317/2004/1 3 24 January 2004, number 747. 4 . 947/97 GV Galea Avukat Dr. Louis vs Ghirxi Frans noe, First Hall (Civil Court), 3 May 2002.
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such accusations had been categorically denied twice over by plaintiff. The defendant had not proved any alleged association of plaintiff with del Negro. The Court then quoted the House of Lords case Reynolds v Times Newspaper Ltd5 wherein it was stated that: ‘The communication of information, not misinformation, is the subject of the liberty of information. There is no human right to disseminate information that is not true’. The Court then found that the editor had defamed the plaintiff.
2.2.3 Sammut vs Caruana Galizia et In Notary Mark Sammut vs Daphne Caruana Galizia and Stephen Calleja,6 the Court of First Instance pointed out that journalists have the right to publish information and ideas on any matter of public interest as this was for the common good of society. Defendant Caruana Galizia was pleading justification and that she had the right to fair comment. The Court however noted that freedom of expression could not be extended to freedom to defame. The Court thus found against defendant Caruana Galizia whilst declaring the other defendant non-suited. The Court of Appeal quoted its own judgment of Tony Aquilina et vs Saviour Balzan et7 as to the diritto di cronaca and added the following quote from the Italian Court of Cassation:8 ... quest’ultima condizione va intesa sia come correttezza formale, sia come limite sostanziale, individuabile in ciò che è strettamente necessario per soddisfare l’interesse generale alla conoscenza di determinati fatti di rilievo sociale, e che va accertato in base ad un’indagine orientata verso il risultato finale della communicazione e vertente imprescindibilmente, in particolare, sui seguenti elementi: 1) accostamento di notizie, quando esso sia dotato di autonoma attitudine diffamatoria; 2) accorpamento di notizia che produca un’espansione di significati; 3) uso di determinate espressioni nella consapevolezza che il pubblico le intenderà in maniera diversa o addirittura contraria al loro significato letterale; 4) tono complessivo della notizia e titolazione. 5 Reynolds v Times Newspaper Ltd [1999] AC 127 (HL). 6 279/2005/1 Sammut Nutar Mark vs Caruana Galizia Daphne et, Court of Appeal (Inferior Competence), 9 January 2008. 7 317/2004/1 Aquilina Tony et vs Balzan Saviour et, Court of Appeal (Inferior Competence), 1 November 2006.. 8 Court of Cassation, 13 February 2002, No. 2066.
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The Court then rejected the appeal, confirming the judgment of the Court of First Instance.
2.2.4 Azzopardi vs Stagno Navarra et In Advocate Dr. Tonio Azzopardi v Karl Stagno Navarra, Joe Zahra and Paul Spiteri,9 the Court stated that Article 33(e) of the Press Act,10 contains three ingredients: (a) the connection with judicial proceedings; (b) the report has to be fair in so far as what took place in those proceedings; (c) the publication has to be bona fide. The Court then quoted Lord Gerald Strickland vs Dr. Carmelo Mifsud Bonnici M.C.A.11 where it was held that in the case of parliamentary reporting ‘tale resoconto … debba essere esatto e fatto in buona fede … per avere tale qualifica il resoconto deve essere imparziale e fatto con la esattezza che si deve aspettare da persone il cui ufficio è quello di dare al pubblico un giusto resoconto di ciò che ha avuto luogo’. The Court then referred to a judgment of the Italian Court of Cassation,12 wherein it was held that: ... costituisce legittima espressione del diritto di cronaca, quale esimente dalla responsabilita` civile per danni, la pubblicazione di un’interrogazione parlamentare dal contenuto oggettivamente diffamatorio, sempre che (e solo che) corrisponde al vero la riproduzione (integrale o per riassunto) del testo dell’ interrogazione medesima, essendo privo di rilievo, per converso, l’eventuale falsità del suo contenuto, che il giornalista non ha il dovere di verificare, pur avendo l’obbligo di riprodurlo in forma impersonale ed oggettiva, quale semplice testimone, senza dimostrare, cioè, con commenti o altro, di aderire comunque al suo contenuto diffamatorio ed abbandonare, così, la necessaria posizione di narratore asettico ed imparziale del fatto-interrogazione.13 9 826/1995/2 Azzopardi Tonio Dr. vs Stagno Navarra Kart et, First Hall (Civil Court) 11 October 2006. 10 Media and Defamation Act, Chapter 579 of the Laws of Malta, article 7(d) . 11 Lord Strickland Gerald vs Mifsud Bonnici Carmel Dr., Court of Appeal, 28 November 1930. 12 19 December 2001, No. 15999. 13 This same point was made previously in 775/2002/1 Caruana Albert Dr. vs Cauchi Gino, Court of Appeal (Inferior Competence) 23 June 200.
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If this were to be the case in the instant case, the journalist would not be in a position to hide behind the privilege contained in Article 33(e) but according to the general rules s/he would have to bring forth evidence of the truth of the facts, the public interest for the information and a correct formal exposition of facts. This did not happen in this case so much so that the defence of justification was not even pleaded. The Court concluded that: (a) the defendant referred to sic et simpliciter and without the addition of personal comments proper to what was stated by Olaf Cini in the proceedings brought against him in reply to questions posed to him by the presiding magistrate; (b) as the witnesses testified, the synopsis made in the report was fair in terms of Article 33(e) and of case law interpreting this provision; (c) the defendants were not obliged to verify with the court minutes and with the plaintiff to establish and determine whether what Olaf Cini stated was truthful; (d) even though what was reported went beyond the minutes of the court case, what Cini stated in court is reproduced faithfully and, therefore, qualified as a fair report; (e) all this implied that the defendants were exempt from any responsibility. Therefore, quoting Gatley,14 the Court concluded that ‘the publication without malice of a fair and accurate report of the proceedings before a judicial tribunal exercising its jurisdiction in open court is privileged’. The Court thus found in favour of defendants.
2.2.5 Causon vs Bondi In Mark Causon vs Lou Bondi,15 the Court quoted the Italian Court of Cassation which distinguished between the diritto di critica from the diritto di cronaca:16 ... il diritto di critica (da distinguersi dal diritto di cronaca che non si concreta in un giudizio soggettivo, ma nella sola narrazione dei fatti), allorchè implichi un giudizio di disvalore, idoneo ad incidere sulla reputazione e sul prestigio professionale della persona nei cui confronti la critica è rivolta, è condizionato, 14 Gatley Clement: On Libel and Slander, (7th edn, edition, Sweet & Maxwell 1974) para. 425 and para 648. 15 533/2005/1 Causon Mark vs Bondi Lou, Court of Appeal (Inferior Competence), 14 November 2007. 16 Cassation, 15 January 2002, No. 370.
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quanto alla legittimità del suo ezercizio, all’osservanza del limite della continenza, il quale viene in considerazione non solo sotto l’aspetto della correttezza formale dell’esposizione, ma anche sotto il profile sostanziale consistente nel non eccedere i limiti di quanto strettamente necessario per l’appogamento del pubblico interesse e postula che il giudizio di disvalore incidente sull’onere e sulla reputazione sia espresso non in termini assiomatici ma accompagnato da congrua motivazione.17 When the Court applied the above principles it did not result that the facts as reported in the Article had been invented. The defendant also pleaded that the enforcement notice served upon him did not refer correctly to his address but the development permission application report referred to his own application for sanctioning of excavated works which also referred to the said enforcement notice. Bearing in mind his political position, this meant that such persons ‘inevitably and knowingly lay themselves open to close scrutiny of their words and deeds by journalists and the public at large, and they must consequently display a greater degree of tolerance’.18 The Court thus found in favour of the journalist, reversing the judgment of the Court of First Instance.
2.2.6 Borg vs Bartolo In Joseph Borg vs Peter Bartolo,19 the Court held that although there is a diritto di cronaca recognised by law, this right did not entail the ‘right’ to defame with impunity another person.
2.2.7 Tabone et vs Azzopardi In Joseph Tabone and Maria Parnis vs Advocate Dr. Tonio Azzopardi,20 the defendant had stated during a television programme that when Paul 17 This quotation was also cited by the Court of Appeal in 51/2003/1 Caruana Curren Gianella Dr. vs Chetcuti Stephen et, Court of Appeal, 20 April 2005. 18 Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986). 19 1747/2000/1 Borg Joseph vs Bartolo Peter, First Hall (Civil Court) 16 October 2002. 20 2201/1999/1 Tabone Joseph et vs Azzopardi Av Dr. Tonio, First Hall (Civil Court)17 November 2006.
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Tabone (the plaintiffs’ father) was killed, the magisterial inquiry referred to the deceased as having stated, before his assassination, that he was going to withdraw the machine which printed false money. The Court concluded that what the defendant stated during the programme amounted to diritto di cronica as it was based on the findings of the magisterial inquiry. The fact that no person was charged with the homicide of Paul Tabone did not diminish from the magisterial inquiry findings.
2.2.8 Galea vs Ghirxi In Advocate Dr. Louis Galea vs Frans Ghirxi,21 the Court held that for the diritto di cronaca to subsist, the following ingredients had to be satisfied: (a) there has to be an objective public interest to know the news (not rumours); (b) the fact which is reported has to be true that it has to correspond to reality; (3) the narrative exposition of the fact has to be objective and fair.22 In this case, the Court concluded that it was in the public interest to report this news and the reported facts were substantially true. However, the report as news was neither objective nor factual because the defendant had not verified the news with the plaintiff but relied only on one side to the story which alleged that plaintiff had abused his position. Hence the Court found against the defendant.
2.2.9 Galea vs Ghirxi In Advocate Dr. Louis Galea vs. Frans Ghirxi,23 the Court noted that the plaintiff’s photo was published in the defendant’s newspaper in connection with Ciro del Negro’s diary giving the false impression that the plaintiff was somehow involved in drug trafficking even if no evidence to that effect was produced. According to the Court, which found the editor guilty as charged, the newspaper did not exercise its right to communicate to the public information of a general interest as it is entitled to do but to manipulate that 21 947/1997/1 Galea Avukat Dr. Louis vs Ghirxi Frans noe, Court of Appeal, 19 April 2005. 22 This judgment was followed in Falzon Michael vs Ghirxi Frans in his own name and as editor of the newspaper ‘The Horizon’, First Hall (Civil Court) 29 March 1994. 23 275/2004 Galea Dr. Louis vs Ghirxi Frans, Court of Criminal Appeal (Inferior Competence) 28 April 2005.
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information with a view to defaming the defendant.
2.2.10 Abela vs Ghirxi In Dr., George Abela vs Frans Ghirxi24 the Court of First Instance held that the essential precept for a serious judgment in a free and democratic society which respects fundamental human rights of each person is that facts have to be reproduced accurately, preferably after serious and reliable verification. It is only at this stage that facts become sacred. A comment has to be distinguished from a fact. In this case the defendant limited his piece to espousing his own unilateral allegation notwithstanding the fact that defendant had sent him beforehand a letter in contradiction of the false allegation made against him by the General Workers Union. Yet the defendant failed to report the other side of the coin and reproduced only the false allegations. The defendant appealed on the basis that he had published only a press release of the General Workers Union without having added anything thereto and referred to his diritto di cronaca in reporting the said press release and in the exercise of press freedom in the public interest. The plaintiff replied that the dititto di cronaca could not translate itself into a repetition of defamation and that the report was very far from the truth. The Court noted that in the diritto di cronaca, the espoused facts had to correspond objectively to the truth, that had to be true facts in their entirety25 and have to be of public relevance. If they are not so, the plea of fair comment cannot even be contemplated.26 The Court then quoted the following passage from Gatley:27 ... every republication of a libel is a new libel, and each publisher is answerable for his act to the same extent as if the calumny originated from him. It is no defence to an action for such republication that the defendant received the libellous statement from another whose name he disclosed at the time of publication. Because one man does an unlawful act to any person, another is 24 240/2006/1 Abela Dr. George vs Ghirxi Frans, Court of Appeal (Inferior Competence) 28 November 2008. 25 See The Police vs Caruana Carmelo et, Court of Criminal Appeal, 15 August 1958. 26 See Fenech Angelo pro et noe vs Montanaro Anthony et noe, Court of Appeal, 21 January 1993. 27 Gatley Clement: On Libel and Slander, (7th edn, Sweet & Maxwell 1974) para 261, p. 263.
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not permitted to do a similar act to the same person. Wrong is not to be justified or even excused by wrong. The Court noted that none of the allegations made against the defendant published turned out to be true. Although the defendant published the letter that the plaintiff had sent him, the defendant did not carry out any research to establish whether the facts alleged in the General Workers Union press release were true. Indeed, it resulted to the Court that the press release was based on defamatory comments. As the Italian Court of Cassation stated: ... affinchè si configurebbe l’esimente putative dell’esercizio di diritto di cronaca è necessario che il giornalista usi legittimamente le fonti informative mediante l’esame, il controllo e la verifica dei fatti che nè costituiscono il contenuto, offrendo la prova delle cure e delle cautele da lui poste negli accertamenti svolti per vincere ogni dubbio e incertezza prospettabili in ordine alla verità sostanziale dei fatti”.28 The Court thus found against the defendant.
2.2.11 Agius vs Farrugia In The Hon. David Agius vs Aleks Farrugia and by decree dated 24 June 2008, Alfred Briffa was declared non-suited.29 The Court of First Instance held that to comment on facts, these facts had to be substantially true and verified as to their accuracy. The journalist is duty bound to carry out serious research before publishing. The Court concluded that the journalist was not exercising his right and duty to inform the public but went beyond this by publishing untrue things. The defendant appealed and the Court of Appeal quoted Franzioni who states that: ‘la conoscenza del fatto puo` avere rilevanza pubblica, o puo` essere di interesse pubblico che sia diffusa, il diritto di cronaca prevale sulla tutela della riservatezza’.30 28 Cassation, 23 July 1996. The court also referred to 1285/2000/1 Gulia Onor. Dr. Gavin vs Borg Dione et, Court of Appeal, 7 July 2006; Fenech Adami Onor. Dr. Eddie et vs Malta Labour Party et, Court of Appeal (Civil, Superior) 9 February, 2007 and the judgment of the Italian Court of Cassation of 2 October, 1992 Number 1703 and of 27 June, 2000 Number 8733. 29 73/2008/1 Agius David Onor. vs Farrugia Aleks et, Court of Appeal (Civil, Inferior), 25 June 2010. 30 Massimo Franzoni, Le obbligazioni da fatto illecito, Edizione Utet, 2004, p. 177.
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2.2.12 Papagiorcopulo vs Magro et In George Papagiorcopulo vs Jimmy Magro and Mario Vella in the name and on behalf of Rainbow Productions Limited and by decree of 15 June 2001, the words ‘Jimmy Magro and Mario Vella in the name and on behalf of Rainbow Productions Limited’ were substituted by the words ‘One Productions Limited’,31 the news item as broadcast during ONE TV’s news bulletin gave the impression that the defendant was guilty of corruption whilst what actually happened was that the Commission against Corruption had received an anonymous letter against the defendant alleging corruption in his behaviour. The television broadcasting station did not carry out any research about the allegation which it broadcast as gospel truth without investigating the matter. The Court found that the defendant had been defamed and that the diritto di cronaca had been abused. It is well known that the publication of information in the public interest is not sufficient by itself to exculpate a person unless it is accompanied by the truth of the facts mentioned in the Article. This requisite brings about the correspondence between the fact as happened and the fact as reported. The Courts do not require this requisite to be applied rigidly and do admit that a mistake might be committed. The essence and substance of the published information should be grounded on the veracity of the facts,32 however it might happen that: l’eventuale discrepanza tra il fatto narrato e quello effettivamente accaduto non esclude che possa essere invocata l’esimente, anche putativa, dell’esercizio di diritto di cronaca, quando colui che ha divulgato la notizia, pur avendo compiutamente adempiuto il dovere di controllo delle fonti da cui la ha appresa, abbia una percezione erronea della realtà.33 31 1699/1994/2 Papagiorcopulo George vs Magro Jimmy et noe, First Hall (Civil Court)29 May 2003. 32 On this point, Massimo Franzoni, as quoted in L-Onor George Pullicino v Felix Agius, Court of Appeal, Inferior Competence, per Mr Justice Philip Sciberras, 23 May 2008, held that: ‘Il requisito della verità, inoltre, ha ad oggetto l’essenza e la sostanza dell’intero contenuto informativo della notizia riportata, mentri i dati superflui, insignificanti ovvero irrilevanti, ancorchè imprecisi, non possono essere presi in considerazione, per ritenere valicati i limiti dell’esercizio del diritto di informazione ed escludere l’operatività della causa di giustificazione’. 33 Italian Court of Cassation, 24 September 1997, Number 9391.
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The appellate Court, however, concluded that no defamation was committed by the plaintiff because the principal facts indicated in the publication had been substantially proved. The defendant had also restricted himself within the narrow confines of publishing information in the public interest without adding value judgments which would have devalued the plaintiff’s character. The Court then ended the judgment by quoting the following Italian decision: In tema di diffamazione a mezzo stampa, la condotta del giornalista che, pubblicando il testo di un’intervista, riporti dichiarazioni del soggetto intervistato lesivo dell’altrui reputazione, non puo dirsi illecito quallora il fatto in se dell’intervista, in relazione alla qualità dei soggetti coinvolti, alla materia in discussione ed al più generale contesto in cui le dichiarazioni sono state rese, presenti indiscutibili profili di interesse pubblico all’informazione, tali da prevalere sulla posizione soggettiva del singolo, e tali da giustificare, per l’effetto, l’esercizio del diritto di cronaca.34 The Court annulled the judgement of the Court of First Instance and entertained the defendant’s appeal.
3. Conclusion From the above review of Maltese case law that applied and commented upon the diritto di cronaca, it can be concluded that this right is pleaded in court by way of defence to defamatory litigation basing itself very much on the veracity of the information disseminated. It is used as a plea intended to exempt from responsibility and from subsequent damages which may be liquidated by the court should responsibility for defamation be found. Further, it goes beyond simply the right to report current affairs and is a manifestation of freedom of expression. For this right to subsist, a number of elements have to be satisfied, these being: (a) true facts: the facts reported related to a news event or current affairs item must be substantially truthful. Dissemination of fake 34
Italian Court of Cassation, 25 February 2002, Number 2733.
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news, rumours or unverifiable information are not covered by this plea; (b) public interest: there has to be a public interest in knowing the fact that is being disseminated. A private interest cannot be considered for the purpose of raising such plea; (c) objectively correct exposition: the final exposition has to be accurate, done in good faith and impartial. The fact as reported has to be objectively correct; (d) when in doubt as to the correctness of the facts, always investigate the matter before going to printing/broadcasting/ disseminating them; (e) there has to be, as far as possible, a correspondence between the facts as happened and the facts as reported. Of course, this element does admit of the possibility that – at times – journalists do get a fact wrong here and there but, provided that they are acting in bona fede and that the published report is substantially true, the Court will not apply rigidly this element. Indeed, when the report is substantially fair and accurate, the Court has held that it is difficult to impute bad faith to the reporter.35 Not included in the diritto di cronaca are the non-existent: (a) ‘right’ to defame. (b) ‘right’ to manipulate facts; (c) ‘right’ to repeat a defamatory statement. The person gathering and disseminating news, current affairs, and public information and ideas, is usually a journalist, broadcaster or media person. But the plea can apply – in today’s digital world – to other persons not necessarily forming part of the journalistic/broadcasting/media professions such as web commentators, bloggers, etc., provided that all these categories of chroniclers – howsoever designated – compile truthful objective information of a public nature which is subsequently published, 35
Cassar Eugenio vs Agius Felix, First Hall (Civil Court) 4 March 1991.
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broadcasted or howsoever spread, divulged or communicated to the world at large. Bad use made of this right to publish news and current affairs, information and ideas on any matter in the public interest might lead to an action for defamation, breach of privacy, violation of professional, trade and/ or official secrecy, spreading of false news, and like offences/delicts. If the chronicler opts to exercise his/her diritto di critica, such exercise has to be based on facts which are objectively correct. The diritto di cronaca is a living remembrance of the influence that the ius civile has had on the Maltese legal system. Although today it might be in the process of being overtaken by new and all-encompassing concepts emanating from Human Rights Law where ‘a sanction imposed on a journalist is justified only in so far as it penalises those parts of his writings which have overstepped the limits of acceptable criticism’,36 it still continues to guide journalists in the performance of their reporting duties, emphasising the sacredness of facts and that fake and/or unverified information or ideas based on false facts is not tantamount to good quality journalism.
36
Perna v Italy App no 48898/99 (ECtHR, 25 July 2001).
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