On the journalist’s duty to scrutinise those in power… and their spouses

“Respect for truth and for the right of the public to truth is the first duty of the journalist.”

This is one of the principles considered as the bedrock of an uncompromising stand in defence of quality and ethical journalism, listed in the Bordeaux Declaration of 1954 by the International Federation of Journalists.

The Appeals Court referred to this principle in two parallel judgments on Friday that overturned a decision by the Court of Magistrates that had awarded Patrick Dalli, husband of Equality Minister Helena Dalli, €10,000 in damages for articles published in The Times of Malta in 2014.

It was a judgment that defended the freedom of the press. “A journalist has a duty to investigate and report on matters of public interest,” Judge Anthony Ellul said.

The judgment defended the right of the press to scrutinise politicians. It confirmed, as if confirmation should have been needed, a journalist’s right also to investigate possible misconduct by the spouses of public figures as a matter of public interest – an important outcome if truth is the primary mission, and if holding power to account remains a journalist’s duty.

It is no accident that the definition of “politically exposed person” or codes of ethics for MPs include spouses and immediate family members of politicians within their remit. To attempt to exclude same from scrutiny as an extension of their spouse is an invitation for disaster. The Court of Appeals agreed.

To put this another way: Magistrate Depasquale’s first rulings (the ones now quashed by the Court of Appeals) stating as they did in essence that spouses of politicians are out of bounds from journalistic scrutiny, would have meant in practice that articles such as that by The New York Times on China’s ex-Prime Minister Wen Jiabao hiding assets with family members was not in the public interest.

The uproar in Pakistan over apartments in London owned by the former Prime Minister’s children uncovered through Panama Papers and resulting in his imprisonment, would have been classified as something about which the public need not know.

These are just a couple of examples to show how dangerous the first Court’s rulings were if left uncontested.

It must also be said that when press coverage on these two cases misses this important point and is focused more on who was involved in the case rather than its important outcome, it should come as no surprise that people question whether the media is doing a disservice to itself and the public.

The State broadcaster TVM had to bend over backwards to come up with a story that turned an important legal victory for press freedom into one where a journalist was somehow “exempt” from having to pay some dues. As though this were some favour, rather than the result of a four-year long battle in court.

Exempt from paying €10,000 to Minister Dalli's husband – https://t.co/ZRYyAC3qQk pic.twitter.com/oTIv0kqQMy

— Television Malta (@TelevisionMalta) March 9, 2019

Exactly.

Here’s a factual headline: @helenadalli’s husband loses libel case in illegal works scandal.

Or @muscatcar wins important appeal concerning press freedom in public interest reporting.

Or @TelevisionMalta consolidates 40 year tradition of state propaganda.

— Justin Borg-Barthet (@JustinBBarthet) March 9, 2019

Both appeals were won, quashing one of the highest fines ever awarded for libel in Malta and obliging Dalli to pay the expenses for both the original lawsuit and the appeal. TVM contorted it into some weird act of charity.

Judge Ellul noted that the first court had taken on board “pure speculation” put forward by Dalli. His lawyers had argued in court that he had been “persecuted” to serve a political agenda.

Their previously successful argument was roundly rejected by the Appeals Court, which said the series of facts reported had been proved “substantially true,” and confirmed by testimony and photographic evidence.

The articles had reported on illegal works that had been carried out at the farmhouse situated in an ODZ (Outside Development Zone) area, consisting of some 120 square metres of floorspace in excess of that approved, as well as ongoing works on the property at a time when it was sanctioned by the Planning Authority. The farmhouse was owned by Pada Builders Limited, in which the Dallis have 99% ownership.

The Court of Appeals concluded that the articles were not defamatory, and noted: “It was evident that when originally doing all that development without a permit, the applicant [Dalli] did not bother to safeguard his reputation nor that of his wife, a member of Parliament and hence a public person”.

This outcome was possible because The Times of Malta backed the fight and stood by the facts reported.

In those four years, there were many – lawyers, readers, friends – who said ‘drop the fight’ because defeat was the inevitable conclusion. This was not advice based on any indication that the facts reported in the articles were wrong; it was because it was seen as a battle against a system far greater than any individual.

This is an important judgment at a time when the press is facing increasing threats to its independence, and the right to scrutinise power is increasingly restricted. It is an important judgment at a time when journalists have to work in an increasingly hostile and difficult environment.

When the first Court had ruled in favour of Dalli, memes appeared on pro-government social media accounts using the €10,000 fine as a weapon to discredit reputations, and linked to comments calling for more bombs.

Although judicial wit regrettably escapes many, the last paragraph of the main judgment by the Court of Appeals also includes a thinly veiled warning to politicians and others: Libel laws must not be used by public persons as a political weapon against freedom of expression, notably investigative journalism.

It is a judgment that comes after the biggest blow ever given to the profession – the assassination of one of our own. There too, the press’ support for the cause for justice is selective, because again some are more concerned about the ‘who’ than the outcome and the consequences for all.

The worst has happened, and we have learned nothing.