FOURTH SECTION

CASE OF FALZON v. MALTA

(Application no. 45791/13)

JUDGMENT

STRASBOURG

20 March 2018

FINAL

20/06/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Falzon v. Malta,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Ganna Yudkivska, President,
Vincent A. De Gaetano,
Paulo Pinto de Albuquerque,
Faris Vehabović,
Egidijus Kūris,
Carlo Ranzoni,
Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 6 February 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 45791/13) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Maltese national, Mr Michael Falzon (“the applicant”), on 8 July 2013.

2. The applicant was represented by Dr T. Comodini Cachia, a lawyer practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General.

3. The applicant alleged a breach of Article 10 as a result of the domestic courts’ judgments fining him for defamation.

4. On 27 August 2015 the complaint concerning Article 10 was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1945 and lives in Naxxar.

A. Background to the case

6. The applicant served as a member of parliament between 1976 and 1996, and he served as a government minister between 1987 and 1996. Even before he was elected to Parliament he had already established himself as a political commentator in the media and regularly authored opinions related to national politics which were published in national newspapers. Upon his retirement from Parliament the applicant began writing weekly opinion columns in the newspaper Maltatoday and another weekly paper.

7. On 6 May 2007 Dr Michael Falzon (referred to hereinafter as M.F., 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 to the Commissioner of Police (CoP). He furthermore referred to the discussion he had had with the latter during which he had asked him to investigate the issue.

8. The most relevant parts of the speech read as follows (translation done by the Registry):

“...But the fact that today, one opens the newspaper Illum, front page, and reads the editorial by S.B., who chose to speak about a pending police investigation, about an anonymous email that I received and about a threatening letter that I received... this is a level which should not be acceptable in our country. And whoever is behind these stories – wherever he might be – and let me be clear – wherever he might be – he should be ashamed...ashamed!

...

Yes I received an anonymous email...and I received threatening letters last November. I did not disclose this to my family. Today they were told by Maltatoday...I can tell them myself...But when something illegal occurs, I go to the police. And that’s what I did. And I went to the CoP, since people who put forward such stories can disclose them I can also do so now for everyone to know. So I went to the CoP. I will tell you what I told him...and he will confirm it. He told me: ‘What will we do, Mike, if it were to [turn out to] be X or Y?’ I told him: ‘I am telling you as of now, Mr R. Be it whosoever in this country, I am authorising you as from now, in advance, even before you start the investigation, to proceed. Because what is illegal, I condemn it, and we as a party always condemned illegality.

And we come to [the subject of] the anonymous email [U wasalna fuq email anonima].

And today ... K.S.N. [a journalist], this person phoned me yesterday as well, told me ‘But you know, this is an innocuous email, it contains nothing.’ And I tell K.S.N. and [other purveyors of] this type of journalism, that when they saw [that] there is a police investigation, is it you, you decide what is illegal and what is not [?]

Because [he was] an admirer. And [the sender] of this email, true. I will speak to him, of course. But note, that he sent it anonymously! Generally admirers tell you, ‘Hi, Mike, is everything alright?’ They do not write anonymously. And K.S.N said other things as well, and so did S.B. [the editor of Maltatoday]. Among other things he said ‑ because he knows a lot ‑ he also phoned me yesterday, and I told him. I told him: ‘You are breaking the law. It is now up to the police’. He also said that apparently ‑ apparently ‑ from the investigation into the email conducted by the police, nothing had emerged, and that it will stop there. And I will tell him now in public: ‘Mr K.S.N. and Mr S.B., you have not discovered America!’ Words to that effect have been said by an employee of our party for weeks...at the Centre...for weeks. And he told me that I will make a fool of myself. I will not interfere. I will not interfere with the police investigation. That is for them to see.

But yesterday I told the CoP, and Inspector C., that such discourse had long been doing the rounds at the Centre [party club]. I gave [them] the names, and it is now up to the police to decide whether to find out where this information originated from, and who is deciding matters in this country.”

9. On the same day K.S.N., a journalist, published an article in the newspaper Illum, entitled “Email sent to M.F. brings admirer before the Police”. The article started off by stating that an innocent email sent to the deputy leader of the MLP had been passed on to the police, who in turn had identified the sender and subsequently questioned him. It concluded with the statement that when M.F. was asked about him reporting the matter to the police, the deputy leader of the MLP (that is to say M.F.) replied that “he would not confirm nor deny” that he was aware of the case.

10. On 13 May 2007 Maltatoday published an opinion by the applicant entitled “Policing one’s enemies”, prompted 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 paragraphs 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 Leben 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.

The police force, I believe, is simply responsible for making sure that people obey the law, for protecting people and property and for arresting criminals. 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.

For me, the biggest unease was caused by the realisation that the film was set in a period that is only some twenty-two years ago, which in Malta corresponds to the Mintoff [former Labour Party leader and Prime Minister] years when I was already active in politics. Little did I think that events that were to unfold when I was back in my country would make me wonder whether the PN [Nationalist Party] and the MLP look at the duties of the police in somewhat different manner.”

11. Other relevant parts of the article, read as follows:

“I say this with deep regret, but I can only be seriously perturbed by the ease with which MLP Deputy Leader Michael Falzon [M.F.] 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 [M.F.] said, the Police Commissioner ‑ who apparently is on familiar first name speaking terms with Dr. Falzon [M.F.] ‑ asked whether he would proceed in the same fashion whether the culprit eventually proved to be 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 [M.F.] 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 [M.F.] 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 Leader 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 in a future where no one controls their freedom and hence their lives.”

B. Libel proceedings

12. On 17 July 2007 M.F., the deputy leader of the MLP, instituted libel proceedings against the applicant (and against the editor of the newspaper) under Article 28 of Chapter 248 of the Laws of Malta (see the “Relevant domestic law” section below), and sought damages, claiming that the above‑mentioned extracts of the article had been defamatory.

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

14. During the proceedings the Court of Magistrates heard the testimony of the plaintiff (M.F.), the CoP, the applicant, the editor (S.B.), and two other journalists (A.B.D. and K.S.N.). It saw documentation submitted consisting of an email exchange between the MLP deputy leader and a third person (J.B.), 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).

15. The CoP testified as follows (as summarised by the first‑instance court):

- He denied that M.F. had persuaded him or influenced him in respect of his doing his job in connection with the case at issue;

- M.F. had requested and obtained a normal appointment with the CoP; when they met M.F. had showed him a letter which the CoP considered to be “injurious and full of threats” towards M.F.; the latter requested the CoP to investigate the contents of the letter;

- M.F. also informed the CoP that he had received an email, which was later passed on to the CoP, following an invitation to do so by the same CoP;

- The CoP asked M.F. whether he intended to initiate proceedings against the person who should result to be responsible, given that the prosecution of such a crime would require the injured party to lodge a complaint;

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

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

17. 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 ordered to pay him 2,500 euros (EUR) in damages. Costs were also to be paid jointly by the applicant and the editor (who was also ordered to pay EUR 1,000 in damages).

18. The court referred to the CoP’s witness testimony to explain the factual situation. In its view, while 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 the open discussion of political issues. The court considered the article defamatory as it had tarnished and impinged on the claimant’s reputation. It rejected the applicant’s defence, noting that it had not been proved that: i) M.F. had manipulated the CoP due to the political office that he held in the party in which he militates; ii) that with his actions M.F. had offended the Police Force since he used the Police Force for his personal aims; iii) that M.F. was some deus ex machina who pulls the strings of the Police Force, from behind the scene, to reach his goals.

19. The applicant appealed.

20. 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 it appropriate to analyse and mention all the relevant evidence that had not been referred to by the first‑instance court:

- M.F., as plaintiff and now respondent, submitted that the reader had been induced to believe that he had persuaded the police to harm someone, when all he had done was to file a report requesting that the anonymous letters and emails he had received be investigated.

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

- The applicant (appellant before the Court of Appeal) explained that in his view the email received by M.F. had been innocuous and that M.F. had thus reacted disproportionality. According to the applicant, from the speech delivered by M.F. publicly (at the Labour Centre in Rabat), it transpired that there was a certain familiarity between him and the CoP; indeed if that had not been so M.F. would have reported the incident at a police station like an ordinary citizen, and not with the CoP. In his view it was natural to question whether M.F. had used the CoP in connection with the internal affairs of the party. Even when cross-examined, he reiterated that influence had been exerted by M.F. 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 to discuss the emails and the anonymous letters.

- In reply to a question, while being cross-examined, as to whether M.F. had put pressure on the CoP, K.S.N. replied that he was aware that a report had been filed concerning the email and that on the same day of publication, M.F. had declared that he was authorising the CoP to institute proceedings against whomever turned out to be the culprit.

21. The Court of Appeal was of the view that, having examined all the relevant evidence and thus gaining an understanding of the circumstances preceding and surrounding the article, the applicant’s assumption could not be considered as constituting fair comment. In the eyes of the ordinary reader, the comments and criticism made by the applicant could not be considered as objectively reasonable, made in good faith and balanced, given that they were based on a certain assumption – that M.F. had exercised influence over the CoP with the aim of controlling people’s freedom; the attack on M.F. had thus exceeded the limits of just criticism. M.F. had had every right to file a report, and the fact that he was politically active had not justified such an attack, which had not been corroborated by factual evidence. It considered that even though the manifestation of free expression was an established principle, that freedom was to be exercised within those just limits of the canon of objective veracity of facts and restraint (entro l-limiti ġusti ta’ dak il‑kanoni tal-verita’ oġġettiva tal-fatti u tal-kontinenza), as elaborated by the most progressive doctrine and jurisprudence on topical issues and the exercise of criticism.

C. Constitutional redress proceedings

22. 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, in substance, that his opinion piece had consisted of criticism, which was a legitimate manner of expressing an opinion about the work of a public figure and 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 M.F. had “manipulated” the CoP or that the latter had been subjected to pressure which had “impeded the exercise of his function” as well that M.F. “was a deus ex macchina pulling the strings of the Police Force”. The applicant emphasised that these were gratuitous inventions by the ordinary court which had not been mentioned in the article.

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

24. It considered that the applicant was attempting to obtain a revision of the ordinary proceedings and noted that it was not quite true that the applicant had never implied that M.F. 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 reasoning to be invented, this had not constituted a breach of his Article 10 rights.

25. The court noted the reference to the Stasi with which the applicant had started his article and his narrative of M.F.’s actions, which had resulted in an individual being investigated and subsequently having his computer seized. In that context he had asked whether M.F. had “used” the police against a political opponent. The applicant criticised the CoP for following up on the indications given by M.F., to the extent that the applicant had called on the Minister of the Interior to look into the matter. Indeed, the CoP was also an object of the applicant’s criticism.

26. According to the court, the word “uses” did not mean “manipulate”, as implied by the Court of Magistrates, but within the context of the article at issue, it nevertheless implied an element of abuse. The criticism against M.F. was that he had taken advantage of his political position to put pressure on the police in order that the latter would 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 had been regrettable; even if it was not intended to do so, it had given the impression of a comparison being made.

27. In its view, even accepting that a public person was subject to greater limits of accept