The Media and Defamation Act, 2018 was enacted on the 24th April 2018, repealing the Press Act, Chapter 248 of the Laws of Malta and establishing a new legal framework for media law, libel, defamation, slander under Maltese law.
The legislator introduced a number of definitions of terms which were already present under the old law, including defamation, libel and slander. While the old law made reference to ‘printed matter’, the new law makes use of the term ‘written media’, which introduces a more technology-neutral approach to Maltese media law.
Defamatory statements and truth of the matters stated
In the case of actions brought for allegedly defamatory statements, the plaintiff must bring proof of serious harm or a likelihood of serious harm.
If the statements complained of convey two or more distinct imputations and the defendant brings the defence of the truth of the imputations conveyed, the defence does not fail even though one of the said imputations is not shown to be substantially true, unless the plaintiff proves that the untrue imputations seriously harm his reputation.
Defence of honest opinion
The new law provides in detail for a number of defences which were only scantily referred to under the old law which were developed and transformed through the judgments of the European Court of Human Rights; among these is the defence of honest opinion.
Under Article 4(3) of the new law, the defence is defeated if it is shown that the defendant did not hold the opinion complained of. It is unclear what is meant by this provision and what would constitute sufficient or adequate proof in this regard.
The new law adds to the list of statements which are considered as privileged and which are consequently unactionable. Peer reviewed statements in scientific and academic journals are considered privileged, as are publications of public interest matters.
Private life and public interest
The Media and Defamation Act includes a number of provisions focusing on the protection of private life. Among these is the proviso to Article 4(5), which renders inapplicable the defence of the truth of the matters charged if such matters refer to the private life of the plaintiff and the facts alleged have no significant bearing on the exercise of the plaintiff’s public functions, office, profession or trade.
The Act gives significant leeway to the Court, to allow the defences of the truth of the matters stated or the defence of honest opinion to be raised in relation to a matter of general public interest or where the plaintiff, even though not a public figure, is involved in matters of public interest, or where the Court is satisfied that the raising of such defences is necessary in the interests of the proper administration of justice.
The public interest defence may be raised both for statements of fact and statements of opinion and even where the defendant reasonably believed that publishing the statement complained of was in the public interest.
Article 9 of the new law makes it possible for the Court to award, in addition to actual damages, moral damages capped at €11,640, while in cases concerning slander, the cap is set at €5000.
Preliminary hearing and mediation
While under the old Press Act, actions for libel followed the normal course of proceedings before the Court of Magistrates, the new Media and Defamation Act introduces the possibility of the case being referred to mediation.
In defamation actions, the Court shall appoint the case for preliminary hearing within 20 days from the time allowed for the filing of the sworn reply. During such preliminary hearing, the Court will hear the parties and decide whether the action may be determined by mediation or agreement or an apology, with or without the payment of costs and/or the awarding of damages up to a maximum of €1000.
The Act sheds no light on the parameters on the basis of which the Court may refer a case to mediation, agreement or the issuing of an apology. It is anticipated that the Courts will have to develop such guidelines on a case by case basis.
The Act sets the basis for the calculation of damages by the Court in defamation actions, namely the gravity and extent of the defamation or the extent of the likelihood of injury to the plaintiff’s reputation, whether the defendant exercised due diligence before publishing the matter complained of and whether the defendant made or offered to make an apology. Where the defendant made an apology and published an unreserved correction before the institution of proceedings, the Court shall not award moral damages in excess of €5000.
Editors of websites
A specific defence is established by the Act for editors of websites faced with defamation actions in respect of statements posted on the website. The editor must show that he was not the operator or the person who posted the statement of the website.
While the defence provides a much-needed life buoy for editors of websites facing ever-increasing difficulty in avoiding responsibility for statements posted in the comments sections of news portals and blogs, particularly where such comments are moderated, it remains to be seen how this defence will be applied by the Courts in the absence of a definition of the term ‘operator’.
Moreover, the defence is defeated if the plaintiff shows that it was not possible for him to identify the person who posted the statement, the plaintiff gave the editor a notice of complaint in relation to the statement and the editor failed to respond to the notice of complaint or did not act in accordance with any regulations concerning such notices, or if it is proved that the editor of the website acted with malice, but it is not defeated by reason only of the fact that the editor of the website moderates the statements posted on it by others.
The Act empowers the Minister to legislate further on the action required to be taken by editors of websites in response to a notice of complaint.
A much required provision in the new law establishes what constitutes a valid notice of complaint for the purposes of the Act.
Article 13 of the Media and Defamation Act introduces the single publication rule which tackles the issue of subsequent publications to the public, precluding the plaintiff from instituting defamation actions for subsequent publications, unless the manner of that subsequent publication is materially different from the manner of the first publication.
The question of whether the manner of the subsequent publication is materially different or not is left up to the Court to determine, taking into account, inter alia, the level of prominence given to the statement, the extent and likely circulation of the subsequent publication and the method of publication.
Right of reply
Another welcome clarification brought about by the new Act is found in Article 15 which clarifies certain matters relating to the right of reply and details how it is to be published in newspapers, broadcasts, website and where multiple rights of reply are received.
The right of reply may be availed of by any person whose actions or intentions have been misrepresented or who has been the victim of defamation or who has had his private life intruded into through a publication. It must be availed of by the person aggrieved within 1 month from publication and where it is availed of and an action is still instituted subsequent to the publication of the right of reply, the Court shall take this fact into account in its judgment and any award made therein.
Defamation of deceased persons
An interesting addition to the actions which may be instituted under the new Act is found in Article 17, which makes it possible for the parents, siblings, children and heirs of a deceased person to file an action for defamation of a deceased person, provided they can prove that their own reputation was in fact harmed by the lamented statement.
The Media Register had already been the subject of considerable criticism for its anachronistic approach to media legislation, freedom of the press and freedom of expression when the first proposal of the Act was published; nevertheless, it has been retained in the new law. Editors who opt to register with the Media Registrar must keep the latter informed at all times of their place of residence or work and any changes thereto.
Abolition of criminal libel
Arguably the most welcome amendment introduced by the Media and Defamation Act is the abolition of criminal libel from Maltese media law and criminal law. The Act also provides that pending criminal proceedings are to be discontinued.
Another amendment to Maltese media legislation which was the subject of much debate is the abolition of the possibility of issuing precautionary warrants, namely warrants of seizure and garnishee orders in connection with actions for libel or defamation. On the other hand, the law still leaves a window of opportunity for the misuse of prohibitory injunctions to prevent publication.
While the Act introduces a number of welcome updates to Maltese media law, it remains to be seen how the provisions empowering the promulgation of regulations concerning certain important aspects of the new law and the Courts’ application and interpretation of the principles introduced therein will shape Maltese libel and defamation suits in the years to come.