The Court of Appeal in its Inferior competence has recently overturned a decision taken by the Court of Magistrates (Malta) back in October 2018 by virtue of which the newspaper ‘The Malta Independent’  was condemned to pay €3,000 in libel damages to  two auditors following articles published on their media, namely “Panama Papers: HSBC investigation expected into alleged fraudulent documents vouching for Keith Schembri and Malcolm Scerri” and “Probe expected into alleged fraudulent documents vouching for Keith Schembri, Malcolm Scerri”.

A brief overview of the facts

When the two articles were both published on ‘The Malta Independent’  portal, reference was made to revelations made by journalist Daphne Caruana Galizia on her running commentary and a document purporting to be ‘information report’ dated the 27th of May 2013 in which a prominent Government official and his chief Executive Officer of his private business empire had made use of a blank document. This could not have been issued by that bank branch as it had closed down many months before the date of the said correspondence, questioning therefore whether action would be taken by the Malta Financial Services Authority (MFSA) against all involved. The mentioned persons were all “heavily implicated in the Maltese spectrum of the Panama Papers scandal”. The second article reported the denial of the allegations by Schembri and Scerri and subsequently attracted several online comments.

The newspaper published a third article on 11th of May 2016 which read that the news portal was “now satisfied that in this matter no wrongdoing can be attributed to Mr. Keith Schembri and Mr. Malcolm Scerri, or their financial consultants Nexia BT” and that the newsroom had acted in good faith and ‘probed’ the matter until a formal clarification by the Bank was issued.

First instance decision overturned:  understanding the lacunae of the Court of Magistrates’ iter

The Court of Appeal established that the presence of hate speech or otherwise cannot be construed as the sole litmus test in determining whether an article is defamatory or not. Indeed, the Court of Appeal favoured the reasoning that the media has the duty of reporting facts which deal with the public realm. The newspaper had acted as watchdog of politically-exposed persons (PEPs) which rendered a ‘professional service’. The newspaper editors, contrary to the plaintiffs claim, did not adopt a biased standpoint when they were reporting facts unearthed by late journalist Daphne Caruana Galizia regarding information reports issued by HSBC Bank fo Malta. The question posed by the newspaper as to whether the documents in question were authentic or not was therefore a legitimate one. 

The Court of Appeal clearly undertakes the view that the conclusion of the Court of First Instance in expediting the decision aggrieved of by the newspaper was ultimately founded on the wrong pretensions. “Without any shadow of a doubt”, the Court opined, “the subject-matter of the present proceedings could not be considered as defamatory towards plaintiffs Brian Tonna and Karl Cini.”

Safeguarding free speech

The Court of Appeal rebutted the fallacious rationale of the Court of Magistrates as follows:

  • The fact that a person engaged in conversation with Head of Communications of a bank (HSBC) did not equate to responsibility of an editor or publisher under the Press Act, Chapter 248. Defendant thus could not be held civilly responsible.
  • The newspaper was reporting facts and not veering towards any premature conclusions worthy of libel; indeed the Panama Papers setting legitimised the duty of a newspaper to reiterate that which was being revealed by another journalist.
  • Exaggeration accentuated by administrative errors are an insufficient cause for imputing responsibility for defamation .
  • The online newspaper did not publish any defamatory remarks against the plaintiffs as it was merely probing the facts as attested by a subsequent explanatory article published on the same day which reported how both plantiffs had denied allegations of fraud.
  • The fact that a newspaper ‘comments and poses questions was beyond legitimate’ as questions made before publication of the article could not translate into any responsibility for dematory remarks.
  • Since the newspaper did not take the view that the documents were fraudulent, this indubitably had no makings of a libellous action.

Whilst separating the article from the comments posted on the comments section, the Court of Appeal declared that the defamatory comments did not render the article defamatory and that they were to be seen as separate and distinct from the article. Therefore, the Court declared the newspaper articles not to be libellous.

Dr. Peter Fenech was the Defence Counsel for the defendants.

For more information on the matter contact Dr. Peter Fenech and click here to get to know more about the litigation department of Iuris Advocates.