AS TO THE ADMISSIBILITY OF
Application No. 29473/95
by Lawrence GRECH and Anthony MONTANARO
against Malta
__________
The European Commission of Human Rights (First Chamber) sitting
in private on 21 January 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 October 1995
by Lawrence GRECH and Anthony MONTANARO against Malta and registered
on 6 December 1995 under file No. 29473/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are citizens of and residents in Malta. They are
the editors of a newspaper, the Sunday Times. The first applicant was
born in 1948 and the second in 1921. In the proceedings before the
Commission they are represented by Mr. G. Bonello, a lawyer practising
in Malta.
The facts of the case, as they have been submitted by the
applicants, may be summarised as follows:
A. The particular circumstances of the case
On 24 March 1985 the Sunday Times published the following letter
in its readers' column under the title "A fishy story":
"SIR, - While doing the family shopping, the other day, I
overheard a customer asking for a tin of tuna fish. The
grocer proudly produced a tin, bearing a familiar brand
name, from beneath the counter. Sensing that my wife would
appreciate the endeavour, I promptly asked for a dozen
tins. On being politely told that I was only allowed a
maximum of three tins, I graciously accepted them.
Whilst my wife was helping me to stow away the goods,
she asked me why on earth I had purchased three tins of
sardines. Taking a closer look I was surprised to see that
it was indeed "sardines" I had purchased. I wondered why
the grocer had so stingily allowed me to buy only three
tins and therefore decided to open one of them. Sure enough
a solid packed tin of tuna fish lay before my eyes. After
some homework, I feel that some pertinent questions arise:
(1) Tuna fish is being sold as "sardines", quite
clearly a case of misrepresentation if ever there was one.
Do we have the equivalent of a Trade Description Act?
(2) The brand name used is Japanese and therefore
cannot be imported (even though, as in this case, it is not
made in Japan).
(3) Tuna fish is a commodity failing within the Bulk
Buying Scheme and presumably contributes toward the Price
Stabilisation Fund. Has the importer of the "sardines"
(sive tuna) concerned effected any such contribution?
(4) The "sardines" in question cost 28c, while a can
of tuna fish of the same size (7 ozs.) retails at 32c. This
is another proof, it proof were needed, of the raw deal the
Maltese consumer is receiving thanks to the Bulk-Buying
Scheme.
(5) Why is it that Government-imported tuna fish is so
scarce while a private entrepreneur seems able to supply it
without difficulty?
An official reply to the above questions would not be
amiss.
Yours truly,
Hamrun. VIGILANT"
Within 24 hours from the publication of the letter, the
Department of Trade asked the representatives of Paolo Bonnici Ltd, the
only company which imported and distributed solid pack sardines in
Malta, to provide explanations. Moreover, it withdrew the company's
import licences of sardines until the completion of the investigation.
Paolo Bonnici Ltd sued the second applicant, as editor of the
Sunday Times, for commercial libel under Article 29 of the Press Act.
The action was heard by the First Hall of the Civil Court which on
24 May 1990 pronounced against the second applicant. The court
considered that the plaintiffs had established that the letter
published in the Sunday Times referred to their business and that it
contained false information. The second applicant, by publishing the
letter, had adopted it, for the purposes of the law, as his own. If the
second applicant had been duly diligent, he would have known that the
letter was false and that it was likely to cause harm to the
plaintiff's business. The plaintiff "not only established the
potentiality of harm which he might suffer, but brought sufficient
proof to show that his import licences, which were pending, were
withdrawn." The court, taking into account the amount of damages caused
by the article, the type of the article and the fact that it did not
mention the name of the importer and the product, decided to condemn
the second applicant to pay the plaintiff 250 liri as damages as well
as judicial expenses.
The second applicant appealed. In a judgment pronounced on
26 May 1992, the Court of Appeal upheld the decision of the First Hall.
The appeal court considered that, contrary to what the second applicant
had argued, the law did not require dolus. It was sufficient if a
person was negligent and failed to exercise the diligence required by
law. The potentiality of damage was more of an objective rather than
subjective element. The applicant had not verified the facts stated
before publishing the letter. Moreover, there was no doubt that the
facts were likely to cause harm, since it had been alleged that an
importer was giving a false indication to his product in breach of
administrative regulations and the commercial code. In fact damage had
been done. It occurred immediately after the publication of the false
declarations and consisted of the official administrative measures
taken against the plaintiff.
Following this judgment, both applicants instituted civil
proceedings for human rights redress before the Civil Court. They
argued that the second applicant "could be held to blame if his
negligent act caused damage. (However, i)t would be unfair and in
violation of freedom of expression if an editor was held to blame for
an act of the Government. An editor should not be responsible if the
Government irresponsibly abused its discretion in issuing and
withdrawing licences and inflicted damage to an importer unjustly."
On 25 February 1994 the First Hall of the Civil Court rejected
the applicants' action on the ground that Paolo Bonnici Ltd had every
right to sue for libel and that the Government's act was irrelevant.
The applicants appealed against the judgment of 25 February 1994
to the Constitutional Court. In a judgment delivered on 15 May 1995 the
Constitutional Court considered that the judgments of 24 May 1990 of
the First Hall and of 26 May 1992 of the Court of Appeal did not
support the applicants' view that the Government had abused its powers
by taking measures after the publication of the letter in the Sunday
Times. The above-mentioned judgments had not gone into the matter
whether the Department of Trade had acted abusively by cancelling the
import licences of Paolo Bonnici Ltd. This was not at issue since the
Government authorities were not parties to the proceedings. The second
applicant had not alleged in the proceedings for libel that the
Department of Trade had acted abusively and arbitrarily as he did in
his complaint under the Constitution. It was not the task of the
Constitutional Court to say whether the Government's act was correct
or abusive.
The Constitutional Court considered that it should only take into
account that the two above-mentioned judgments had not declared the
Government to have acted abusively or irresponsibly. These two
judgments said that, after the publication of the letter, the
Government took administrative measures which badly affected the
business of Paolo Bonnici Ltd. This had been mentioned with a view to
establishing the element of damage which was required under Article 29
of the press Act. Actual damage had been shown to have ensued and not
just the potentiality of damage. Therefore, it was not possible to
maintain that the two judgments penalised the applicants for abuse of
power by the Government. There was absolutely no connection between the
fine of 250 liri and the damages of over 12,000 liri which Paolo
Bonnici Ltd suffered as a result of the measures of the administration.
In the light of all the above, the Constitutional Court upheld the
judgment of 25 February 1994 of the First Hall of the Civil Court.
B. Relevant Domestic Law
Article 29 of the Press Act provides as follows:
Whosoever, by any means mentioned in section 3 of this Act,
shall publish any statement which he knows or with due
diligence could have known to be false and which is likely
to damage any business concern or other property, shall be
liable to pay, in addition to the damages which may be due
under any law for the time being in force in respect of any
actual loss or injury, a sum not exceeding
two thousand liri to be fixed by the competence court.
COMPLAINTS
The applicants complain that the finding of the domestic courts
that they were responsible in damages to Paolo Bonnici Ltd constitutes
a violation of their right to freedom of expression under Article 10
of the Convention. They stress that, according to the judgments in
question, a newspaper is responsible in damages not only for the
consequences of its negligent or reckless reporting, but also for the
consequences of abuses of power committed by the public authorities.
The applicants further submit that the motives of the withdrawal of the
licences from Paolo Bonnici Ltd were political, since the directors of
that company were identified with the opposition party.
THE LAW
The applicants complain that the finding of the domestic courts
that they were responsible in damages to Paolo Bonnici Ltd constitutes
a violation of their right to freedom of expression under Article 10
(Art. 10) of the Convention.
The Commission recalls that Article 10 (Art. 10) of the
Convention, insofar as relevant, provides as follows:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary."
The Commission further recalls that, in accordance with the case-
law of the Court, information of a commercial nature is not excluded
from the scope of Article 10 (Art. 10) of the Convention (Eur. Court
HR, Markt Intern Verlag GmbH v. Germany judgment of 20 November 1989,
Series A no. 165, p. 17, para. 26). An interference with the right to
impart information infringes the Convention, if it does not satisfy the
requirements of paragraph 2 of Article 10 (Art. 10-2). It should,
therefore, be determined whether it was "prescribed by law", whether
it pursued one or more of the legitimate aims set out in that paragraph
and whether it was "necessary in a democratic society" to achieve such
aims (see Markt Intern Verlag GmbH v. Germany judgment, op. cit., pp.
17-18, para. 27). The Contracting States have a certain margin of
appreciation in assessing the existence and extent of the necessity of
an interference, but this margin of appreciation is subject to a
European supervision as regards both the legislation and the decision
applying it, even those given by an independent court. Such a margin
of appreciation is essential in commercial matters. The review
exercised under the Convention must be, therefore, confined to the
question whether the measures taken on the national level are
justifiable in principle and proportionate (see Markt Intern Verlag
GmbH v. Germany judgment, op. cit., pp. 19-20, para. 33). However, the
impugned court decision must be looked in the light of the case as a
whole (see Markt Intern Verlag GmbH v. Germany judgment, op. cit., p.
20, para. 34).
The Commission notes that it was the second applicant who was
condemned, in his capacity as editor of the Sunday Times, to pay
250 liri in damages to Paolo Bonnici Ltd. Although the first applicant
was also the editor of the above-mentioned newspaper and although he
instituted together with the second applicant civil proceedings for
human rights redress before the Civil Court, he was not a party to the
first set of proceedings for damages. However, the Commission does not
consider it necessary to decide whether the first applicant can claim
to be a victim of a violation of the Convention, within the meaning of
Article 25 (Art. 25) thereof, because the application is in any event
inadmissible as manifestly ill-founded for the reasons stated below.
The Commission considers that the award of damages in commercial
libel resulting from the publication of a letter in the Sunday Times
of 24 March 1985 constituted an interference with freedom of
expression. It also considers that this interference was prescribed by
a law within the meaning of paragraph 2 of Article 10 (Art. 10-2),
Article 29 of the Press Act, and that it pursued one of the legitimate
aims set out in that paragraph, the protection of the reputation or
rights of another, the Paolo Bonnici Ltd. The Commission must,
therefore, examine whether the interference was necessary in a
democratic society.
The Commission notes in this connection that the applicants do
not dispute that the information contained in the letter they published
on 24 March 1985, namely that tins of sardines traded in the local
market had been found to contain tuna fish, was false. Furthermore, the
Commission considers that the domestic courts could have reasonably
concluded that the information was likely to cause damage to the
plaintiff company in the action for damages, since it was the sole
importer of tins of sardines at the time. Moreover, the Commission
notes that the Constitutional Court in its judgment of 15 May 1995
concluded that, given the amount of damages awarded, the courts had not
penalised the applicants for the action taken against the plaintiff
company by the Department of Trade upon publication of the letter in
question. As the Constitutional Court observed, the damages caused to
the plaintiff company by the revocation of its import licences by the
Department of Trade amounted to 12,000 liri and not to 250 liri which
was the amount of damages awarded in the libel proceedings.
In the light of all the above and taking also into consideration
the nature of the award, the Commission considers that is has not been
established that the measures taken on the national level were not
justifiable in principle and disproportionate. It follows that, in the
particular circumstances of the case, it was within the State's margin
of appreciation for its courts to have awarded the particular amount
of damages and it follows that the third requirement of paragraph 2 of
Article 10 (Art. 10), that the interference be necessary in a
democratic society, has also been complied with.
As a result, the Commission concludes that no appearance of a
violation of Article 10 (Art. 10) of the Convention is disclosed. The
applicants' complaint must, therefore, be rejected as manifestly ill-
founded under Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy