There was something eerie about the praise bestowed on magistrate Joe Mifsud for his recent refusal of bail to three people charged with inciting violence against the police by posting a couple of crude comments on Facebook.
Mifsud said he wanted to send a clear message to society that nobody has the right to ridicule and incite violence against the police seeing as their role is crucial in enforcing law and order in the country. His logic seemed to strike a chord with a large segment of the Maltese public - here is a magistrate with balls, one who isn’t afraid to say things as they are and to crack the whip for the good of society.
Yet the magistrate sent out another very clear signal - Malta lacks clear guidelines on what people can and cannot say on social media and the authorities seem to be taking decisions on who to prosecute on a case by case basis.
Freedom of speech has always been a notoriously tricky topic to navigate and the advent of social media has made it much more so. Yet three people are now in jail because their comments, likely more darkly humourous than malicious in intent, struck a raw nerve in a society stunned by the hit-and-run attack on police officer Simon Schembri.
This decision is more worrying still when you consider how some government politicians have suggested Schembri was attacked in the first place because of an anti-police mentality fostered by people protesting against the assassination of Daphne Caruana Galizia.
While there are always going to be disputes about what constitutes freedom of speech, the debate in Malta has now become extremely toxic. The demarcation lines between free speech, hate speech, roles and responsibilities, harassment, inciting violence and the right to protest have now become so blurry that we risk destroying altogether a concept that is crucial to a functioning democracy.
So what is freedom of speech?
How the European Court of Human Rights defines freedom of expression
The European Convention of Human Rights describes freedom of speech as “the freedom to hold opinions and to receive and impart information and ideas without interference by public authority”. However, this freedom comes with duties and responsibilities and “may be subjected to such formalities, conditions, restrictions or penalties as are prescribed as law and are necessary in a democratic society.”
This means two things. Firstly, free speech means that people have a right to express their opinions without fear of retribution by the police and the law courts, which means that free speech can only be curtailed by the state.
This is not a partisan argument, but a reflection of the fact that it is the state which controls, and can therefore abuse, the instruments of power to clamp down on uneasy opinions.
We saw an example of this recently when the ECHR ruled against a decision by the Maltese courts to ban local artists from performing the play ‘Stitching’ on the grounds that its portrayal of sexual perversions was too dangerous for the public to feast on.
The Maltese court's ban on the play Stitching was overturned by the ECHR
However, the waters have now become extremely muddied - in no small part because government officials are propagating a narrative that Labour sympathisers are having their free speech curtailed by non-state entities. For example, the Church and the Dominican Province were recently accused of denying Fr Mark Montebello his right to freedom of expression by imposing a media blackout against him in light of his criticism to the Church’s strategy against the new IVF law.
This is not technically correct though. The Dominican Provincial’s decision was not an example of freedom of expression being suppressed per se, but an example of an institution forcing an internal dissident to get in line.
One may agree or disagree with Fr Montebello’s arguments (I happen to agree with him) but a group has every right to impose and enforce rules amongst its members to ensure that its raison d'être isn’t lost by members singing from several different hymn sheets. Just as a political party has a right to discipline MPs who keep voting against the party whip and just as I would lose my job if I had to start bashing the company I work for in public, so too does the Dominican Provincial have a right to take action against one of its own. You can criticise the Provincial and the Church for not being as open as Fr Montebello in the first place, but the priest’s free speech would only have been potentially breached had the police knocked on his door to arrest him for his writings.
The Prime Minister's spokesperson Kurt Farrugia on the medical blackout on Fr. Mark Montebello
It is crucial that we, as a nation, don’t lose sight of this distinction because otherwise it will be extremely easy for government officials to justify any real future threats to free expression by appealing to hypocrisy - a very powerful tool.
This is how it could go. An activist gets arrested for protesting against the police or the government and critics will get shot down by cries of: “You hypocrite! Where were you when Fr Mark was censured?”
This is not a doom and gloom scenario but a very real threat. When Simon Schembri was mowed down last week, several government officials quickly took to social media to suggest he was attacked in the first place because of the way activists had demeaned the police force in recent protests. MEP Marlene Mizzi went as far as to claim Schembri was “collateral damage” caused to society by “agenda-driven” protestors while Prime Minister Joseph Muscat insinuated pretty much the same thing by urging society to use the Schembri case as a lesson that the institutions must be respected at all costs.
The right to free speech comes hand in hand with the right to protest peacefully, but government officials are fuelling the narrative that protestors are treacherously leaving innocent people in serious pain. This is an extremely dangerous strategy, as one of the best ways to justify inhumane treatment against a group of people is by dehumanising them and making people feel disgusted by them.
Marlene Mizzi's take on the Simon Schembri hit-and-run
So what about hate speech then?
The ECHR’s definition of free speech makes it crystal clear that it is not an absolute right that allows people to say whatever the hell they please without fear of any repercussions. This has to be so, because the ‘majority rule/minority rights’ principle is essential to democracy and, seeing as humans always form themselves into groups, giving people a free reign on what they can say means minorities will very likely by victimised, threatened and harassed.
And this is why the concept of hate speech is so crucial in the first place - to prevent social groups from fighting against each other on the basis of their differences.
Maltese law defines hate speech as “an intent to stir up violence or hatred” against people or groups on the grounds of gender, gender identity, sexual orientation, race, colour, language, ethnic origin, religion/belief or political or other opinion”.
Closely connected, but legally separate, are the law against inciting others to break the law, the law against threats, and the law against harassment.
The Maltese law against hate speech
The laws leave quite a lot of room for legal interpretation, which means there will invariably be clashes between the rights to free speech, the rights to public order and the rights to not be threatened, harassed or dehumanised. It is a delicate balance, which means a huge amount of responsibility falls on the judiciary to ensure these 'safeguarding' laws are being applied responsibly and not as a pretext to clamp down on criticism and free speech. The advent of social media, where your ‘hate speech/threats/harassment/incitement’ can be instantly proven by virtue of a screenshot, makes it even more incumbent on the police and the courts to ensure that their battle against Facebook comments is not scaring people into subservience to authority.
Because, when you think about it, so many Facebook comments can be interpreted as being either hate speech, harassment, threatening behaviour or incitement to commit violence.
Take the case of the three people who were recently charged with inciting violence against the police through their Facebook comments and who were denied bail. One of the ‘incendiary’ comments read as such: “Do the authorities treat citizens with the same kind of respect they’re expecting back?”
Other comments then, probably jokingly, implied that the teenage driver should have driven over Schembri again “just to make sure”.
Is that an example of inciting people to break the law? Possibly, but if that’s the case then what else could be interpreted as such? What about using strong language to criticise a court’s decision on Facebook? What about protesting against police inaction against corruption? What about mocking the police commissioner?
And why stop at the law and order enforcement authorities either? Private political Facebook groups are already being described as ‘hate groups’ even though a large chunk of their content is usual political banter, albeit with harsh language. But if criticising the police means you are inciting violence against them, then why can’t the same be said for criticising politicians? And why stop there? Why can’t a journalist’s reports on corruption be interpreted as treason or as inciting violence?
One only need look at the arguments by the Turkish authorities against government critics to find out how free speech can so easily be stifled under the guise of safeguarding public order.
By denying those three people bail, magistrate Joe Mifsud sent a signal to Maltese society that criticism or mockery of the police should be punished severely. Judging by the praise he received from the Maltese public, it would appear that several people either do not know or do not care about how a decision like this could set an ugly precedent in terms of the state clamping down on critical opinions and the public consequently self-censoring itself.
It’s a very slippery slope. Let’s not ignore it before it is too late.