Criminal Defamation: Just Plain Evil or Necessary Evil?

From the outset the title of this blogpost immediately conveys the idea that I consider criminal defamatory libel "evil". In particular, I find that it is inherently wrong and undemocratic to put someone in prison for words or writings about others even if they end up to be purely speculative or outright false. Criminal libel is part of our criminal law and is established as a crime in Article 252 as follows:

252. Whosoever, with the object of destroying or damaging the reputation of any person, shall offend such person by words, gestures, or by any writing or drawing, or in any other manner, shall, on conviction, be liable to imprisonment for a term not exceeding three months, or to a fine (multa). 

The penalty is decreased where the defamation consists of vague expressions or indeterminate reproaches, or where the words or gestures used are merely indecent (crime becomes a contravention). However, it is increased if such defamation occurs in writing, drawings or effigies that are divulged and exhibited to the public (imprisonment of up to one year). Moreover, the party who defames is not allowed to produce evidence of the truth except in the case of public officials and he/she shall only be exempt from punishment where that truth is deemed by the courts to be in the public interest. It appears that in the case of private individuals there is no defence. 

The criminal law, however, makes a distinction between defamation and libel on printed matter. In the latter case, it states that the provisions of the Press Act shall apply. 

The issue with defamation is a delicate one. Unfortunately for free-speech radicals, damage by words or writing to the reputation of others is one of the exceptions to freedom of expression. One must bear in mind that the motivation behind such law is that a person who, in bad faith and with malicious intent, conjurs up a falsity to utterly destroy the reputation and honour of another (his family included) should be made to suffer some form of punishment. I think that most would agree that this is a serious inherent wrong that is objectively justified. The problem arises with respect to punishment: is imprisonment a proportionate response to counter such wrong? 

Furthermore (and parallels can be drawn here with the laws on obscenity and their consequences viz-a-viz artists) such a punishment may indeed serve to stifle the media. But one must not immediately come to the conclusion that, as a result, laws such as these should be immediately demolished and thrown in the dustbin of history. That would be rash and may open up a Pandora's box - or simply a case of going from one extreme to the other.  

The UK abolished criminal defamatory libel as recently as 2010, but as other more recent events suggest (Leveson comes to mind), the media too can play very dirty games. Of course, one has to take into account the fact that the case with NotW/Murdoch/etc involved other offences relating to privacy -  but these same issues (recordings and whatnot) are cropping up here too. 

Whatever the case, I claim that the motivation behind this law is well-reasoned but it does require serious reform. Perhaps one step forward would be to give the alleged "defamor" more freedom to prove the veracity of his allegations - in other words this defence should not be restricted in any way. Secondly, the law or procedure should be drafted in such a way that the prosecution and/or complainant must prove beyond any reasonable doubt whatsoever three key points: (1) the falsity of the words, writing or gestures (the mind boggles at what such gestures could be) ; (2) bad faith; (3) malicious intent. Thus, even though a writing may found to be ultimately false, the "defamor" should be exonerated when he/she proves that such writing was drafted in good faith and/or without malicious intent. A case that comes to mind is that issue concerning Joseph Mizzi's (public official) alleged "drunk" episode at the Eurovision. Mizzi may have furnished proof that his drink was in fact spiked, but it does not mean that the press who brought this incident to light did so in bad faith. Other obvious cases are articles on statements on serious shortcomings - even corruption (and associated whiffs) - but which cannot be definitively proven. 

Thirdly, the punishment for imprisonment should be removed as I feel that, although the damage caused may be serious, it would be a disproportionate response to mitigate such a crime - all the more so when it is applied to journalists who draw up articles from various sources. Furthermore, it appears that such punishment is a mere relic of the past as it is supposedly no longer applied/enforced by the courts.

Another plausible alternative would be to merely remove the criminal aspect and to retain the civil "offence" under tort/libel. A legitimate downside to this (in my opinion) is that in the civil realm, the court bases its decisions on what is called 'balance of probabilities' rather than 'proof beyond reasonable doubt'. Thus it may be easier for a civil court to conclude that harm was done than a criminal court; and there is more scope for subjectivity rather than objective forensic evidence.  

Ultimately, the monetary compensation and the exoneration by the court of the alleged crime should definitely serve as sufficient remedy. Coupled with this should be other procedural reforms in the sense that such cases are treated with greater urgency by the courts. This is best for both parties for on the one hand the alleged victim may lose not only his reputation but also livelihood (by being forced to resign for example), and on the other hand (if the criminal offence is retained) the alleged violator would be accused of a crime which is serious in itself. Another interesting aspect (more substantive than procedural), but which may not go down well, would be to apply fines that are proportionate to the damage suffered - both actual and moral - and not a mere maximum of €x. Lastly, and perhaps this is the most difficult part albeit the most obvious, persons in the public sphere have to acknowledge that they are not immune from scrutiny - that the functions they serve (and not their private lives, please) and how they serve them must be put under the magnifying glass. 

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