Artistic freedom in the dock as satirist faces court action in Yorgen Fenech case

The author of satirical news website Bis-Serjeta faces up to a month’s imprisonment and a fine of €2,329 after magistrate Rachel Montebello last week ordered the court registrar to initiate court proceedings over a satirical Facebook post.

The magistrate, who is presiding over the compilation of evidence in the Yorgen Fenech case, ordered court action after Fenech’s lawyers complained about the post.

The post on the Facebook page of Bis-Serjeta depicted a photo collage of four of Fenech’s lawyers, with Fenech featured at the centre, and the caption underneath that read: “Government urges people not to be rude to mafia lawyers”.

The magistrate also simultaneously ordered similar action against university lecturer Simon Mercieca following separate complaints by the Attorney General over blogs allegedly disparaging the Deputy Attorney General, who is prosecuting.

In an unusual deviation from procedure, the magistrate did not notify the prosecutor and parte civile lawyers about the legal application filed by Fenech on 16 December for their respective replies.

In the twelve-page decree, which caught everyone by surprise at the end of the last court hearing, Montebello justified the order for court proceedings against Bis-Serjeta and Mercieca partly to protect the lawyers (as “officers of the court”) from attacks or insults, and partly to “safeguard [Fenech’s] right to a fair hearing”.

Legal sources consulted by The Shift said the caption on the Facebook post by Bis-Serjeta  is a play on words that does not suggest that the lawyers themselves are “mafia” – as such the post seems devoid of elements that would make it illegal, especially since it’s published on an identifiable satirical site that is not supposed to be taken seriously or literally.

In a case decided in 2015, the European Court of Human Rights (ECHR) said: “The protection conferred by Article 10 [freedom of expression] also applies to satire, which is a form of artistic expression and social commentary and which, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Accordingly, any interference with an artist’s right to such expression must be examined with particular care”.

The ECHR then further emphasised the importance of “context” in deciding upon a particular case.

The author-cum-publisher (it’s a one-man operation) of Bis-Serjeta told The Shift when contacted that he had created the post in response to the furore over messages, replete with expletives, that National Book Council chairperson Mark Camilleri had sent to one of Fenech’s lawyers.

The messages had led to calls for Camilleri’s resignation by the permanent secretary at the Education Ministry, a request that was withdrawn by Minister Justyne Caruana after he apologised for the language he used.

In its slogan, Bis-Serjeta promises “serious journalism in a satirical country”. The author is part of the satirical brand: his fake picture is set against the Kremlin and features a grotesquely fake moustache, Russian wintry fur hat, and dark suit; he goes by the pseudonym of Karl Stennienibarra.

Contacted by The Shift, the author was surprised at the prospect of being taken to court by the registrar – if the case gets to the civil court, the registrar would be the plaintiff and the author would be the defendant.

When speaking to The Shift, he requested his real identity to be withheld because the satirical elements would be undermined. The Shift is acceding to his request.

Asked for comment, he said: “Essentially all I have to say at this point is that if we want to be the kind of country that prosecutes satirists, then so be it”.

As for the other person set to be taken the court, Simon Mercieca, sources have told The Shift that the Attorney General presented three allegedly offensive blogs in her note to the court.

This is set to be the second time that Mercieca will face court action over contempt of court. On the previous occasion, he published recordings that had been heard in a closed court and whose broadcast was explicitly banned by the magistrate.

A trawl of Mercieca’s website yields about half a dozen blogs which feature the Deputy Attorney General Philip Galea Farrugia, who is prosecuting. Mercieca’s blog bears the slogan of “a site containing other viewpoints on current affairs.”

Mercieca’s blogs are stinging and personal, and selective with facts. In one blog, he distorts an article that appeared in The Shift to make insinuations on Farrugia.

In another blog, after Farrugia had reacted with a Facebook post accusing Mercieca of being a “liar”, Mercieca starts the blog by writing that “as promised” he would keep writing “posts about him [Farrugia].” He added: “I am doing this to show him that his posts do not scare me.”

Irrespective of the content of the material in both cases, legal sources have told The Shift that the contempt of court proceedings for material published about the lawyers outside the court are misplaced. If the lawyers felt disparaged, the proper recourse would have been a libel lawsuit, not contempt of court proceedings, which are much narrower in scope.

In another controversial point, the magistrate wrote that only “the media, [and] not private persons” are to report on what is divulged in the course of court proceedings – a distinction that has no basis in law. Although this part of the decree is instructional, not founded on actionable legal provisions, it is likely to have a chilling effect on journalistic coverage of stories associated with Fenech.