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EXPLAINED: Maltese Magistrate’s ‘Free Speech’ Logic Which Ruled Nazi Smear On Actress Was Fair Game

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Several artists have been left flummoxed by a Maltese court’s decision to throw out a libel case filed by actress and Occupy Justice activist Pia Zammit, but what exactly does this judgement imply for future cases?

Magistrate Rachel Montebello’s interpretation of the Media and Defamation Act, enacted two years ago, should make people realise it’s become much harder to successfully sue people for defamation.

Once again, the notoriously thorny societal line between freedom of speech and the right not to be offended has been tested, although whether this is a victory or defeat for free speech is debatable.

Why did Pia Zammit sue for libel in the first place?

In August 2019, It-Torċa published a photo of Zammit wearing a Nazi costume that was taken backstage during a 2009 performance of the wartime comedy ‘Allo ‘Allo.

The photo, which shows Zammit jovially posing with her hands on two Swastika badges, was originally uploaded to Facebook by a friend of the actress herself several years ago but was viewed by the newspaper’s editor in 2019 in a WhatsApp group.

It-Torċa published the photo on its front page with the title ‘Controversial Photo… Pia Zammit Explains’ and the article later on in the paper with an expanded title: ‘Controversial photo… Pia Zammit Explains That This Was Taken Backstage’.

In the article, It-Torċa wrote that it had reached out to Occupy Justice after this particular photo started doing the rounds on social media. What follows is Zammit’s response, in which she confirmed the photo was taken backstage ten years earlier and that the paper’s attempt to pass it off as news was “a ridiculous attempt at intimidation”.

A week later, the same paper published another front-page article, in which an anonymous “educator” warned the photo was offensive to victims of the Nazis.

Zammit sued It-Torċa’s editor Victor Vella for libel, warning the articles were published with malicious intent to seriously harm her reputation and incite public hatred against her.

“The essence of her complaint was that the photo was described as controversial, with no reference to the context in which it was taken, and was given prominence as a controversial photo on the front page of two popular papers, implying that she supports Nazism,” magistrate Montebello summarised.

The photo in question

The photo in question

So how did she lose the case?

Magistrate Montebello noted that the Media and Defamation Act of 2018 has elevated the threshold for people to win defamation damages – from content that could harm someone’s reputation to content that could seriously harm it.

Such serious reputational harm must be proved by the plaintiff and the magistrate wasn’t satisfied that Zammit proved such damage in this case.

Montebello dismissed Zammit’s argument that the article implied she was a Nazi sympathiser, noting that the first title included the words ‘Pia Zammit Explains’, ie. making it clear that the article was giving the actress a platform to explain this photo to the newspaper’s readers.

The title of the second article refers to ‘joking around with the swastika’, again implying that Zammit was joking and not expressing her Nazi sympathies, but that even jokes are unacceptable where the swastika is concerned.

“It’s a known fact that jokes associated with symbols of genocide and human massacre are unacceptable and, at the very least, insensitive,” Montebello said.

“The court believes that what was derived from the article was the element of insensitivity of her pose and the irony of the contrast between her role in Occupy Justice and her joke with the Nazi symbol, not the implication that she’s a Nazi supporter.”

And despite several Facebook commenters responded to the articles by claiming that Zammit was a Nazi sympathiser, the magistrate argued that the defamatory element must be proven by “applying the criteria of an ordinary reader and not a reader with a socio-political agenda or a reader who represents one sector of society”.

“An ordinary reader wouldn’t have implied that she’s a Nazi sympathiser. The fact that the article brought out an ironic contrast between that photo and her role in Occupy Justice doesn’t mean the statement is defamatory. Neither is it defamatory just because the article lacks journalistic value or isn’t in the public interest.”

Moreover, the magistrate argued that Zammit should have expected some level of criticism when she uploaded the photo, noting that the new media law has replaced the “fair comment” defence with “honest opinion” when a defamation lawsuit is brought by a public person.

As a professional actress, Zammit is considered a public person in terms of the law.

So is this a victory or defeat for freedom of speech?

Several artists have roundly criticised this ruling, posting photos of themselves in costume in solidarity with Zammit.

“We stand with Pia Zammit and with all actors who shouldn’t have to risk being the subject of a smear campaign over a character they once played in a show,” the Comedy Knights said.

The Malta Entertainment Industry and Arts Association went a step further, warning this ruling could have created “a serious and dangerous precedent” that will endanger artists and their free expression.

Occupy Justice warned that the court decision is “intrinsically endorsing the behaviour of political parties and their affiliates when they use such evidently twisted tactics so as to silence those who dare criticise them”.

“What kind of message does this perverse judgment send to fellow activists and NGOs in all sectors, fighting for a better future? Give up, you don’t stand a chance against the bad guys and the failed institutions that protect them? In a country awash with misapplications of the law, this latest travesty may be no surprise, but is no less appalling for it.”

“Satire is at its most powerful when it deals with the more uncomfortable truths of our history and society. Regrettably, this notion has been completely missed by the Maltese courts,” they said.

“Magistrate Rachel Montebello’s ruling should have all Maltese actors considering their next role carefully, lest they are misinterpreted and taken out of context a few years down the line.”

One can understand this logic. If artists who speak about politically controversial topics could find themselves smeared on the basis of the characters they once played, they could well decide to self-censor, either by playing less controversial characters or by stating less controversial comments.

Free speech could take a hit, not directly as a result of the law but indirectly as a result of the law not protecting them enough from vicious smear campaigns by political actors. Malta already has a huge self-censorship problem when it comes to criticising people in positions of power and going against public opinion, and the last thing we need is more of that. 

However, the irony is that the Media and Defamation Act was intended precisely to safeguard free speech and was welcomed by the Institute of Maltese Journalists, media houses and the Front Against Censorship in this regard.

Now-assassinated journalist Daphne Caruana Galizia described the need for a libel law overhaul perfectly in 2015 when she won a libel case instituted by then PL deputy leader (now judge) Toni Abela after she called him a clown.

“Those who are celebrating the victory of common sense in this case had better stop and think instead about how little common sense – or justice, for that matter – there is in a system which allows a politician to harass a journalist in this manner by dragging her up and down from court for seven years for describing him as an incompetent clown,” she wrote.

“Every time I have to appear in court because I have been summoned by some screwed-up politician or other weirdo who doesn’t understand the concept of freedom of expression in a democracy, I have to take a morning off work besides leaving the house at 7.30am to struggle through the traffic, find somewhere to park, and be at the Courts of Justice for 9am. My work piles up, I am put through the harassment of being in court and I am expected to feel intimidated and threatened (chance would be a fine thing by now).”

“And this not because I lied about a fact and said that a politician murdered somebody when he did not, but because I expressed an opinion.”

So while the magistrate’s ruling may sound bizarre at first glance, it could also have set an important precedent in stopping people in positions of power from suing journalists and commenters for merely offending them. If It-Torċa can publish those articles about Pia Zammit without getting fined for libel, then journalists can also make fun of people in positions of power or use colourful language to explain their opinions about them without fear of spending years battling a court case.

And while this could sound like a victory for freedom of speech on paper, today’s judgement show it isn’t that clear-cut. For while the new press law adds additional safeguards for critical journalists, it also seems to have opened the floodgates to the legal vindication of obvious political smear campaigns against critics of the establishment. It’s obvious where this road can lead – fewer critics, more self-censorship, more vicious and coordinated social media smear campaigns, more fear of the powers that be and ultimately more tolerance of abuse of power.

Freedom of speech is a notoriously tricky debate to navigate, and it’s clear that the new Press Law hasn’t closed the chapter on this chestnut. If the law is only going to lead to the silencing of government critics, then it’s clearly not serving its purpose.

Photo left: Pia Zammit (Photo: Occupy Justice), Photo Right: Magistrate Rachel Montebello 

What do you make of this ruling?

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