The Shift’s reporting ‘a matter of public interest done in the public interest’, court rules

The Shift’s founder and editor Caroline Muscat and Matthew Caruana Galizia, the son of assassinated journalist Daphne Caruana Galizia, have won four libel cases brought against them by E & S Consultancy and its directors.

The Magistrates’ Court threw out the libel suits and concluded that The Shift’s reporting cannot be regarded as “anything less than a publication in good faith about a matter of public interest done in the public interest”.

The Court was also satisfied with the due diligence exercised by The Shift when penning the article, that it was “factually correct” “measured and without undue sensationalism” and that “it is not an expressed opinion and made no allegations of guilt but reported only facts that are substantiated and – as has been established – are of public interest while making a clear distinction in the article between facts and allegations.”

Moreover, the Court found that there was “no evidence in the records to show that the defendant knowingly failed to mention any existing facts at the time or acted maliciously” and that the connection between Marian Kočner and Malta via the companies set up here by him was well-established and were even publicised at the time.

In March 2019, E & S Consultancy Ltd, represented by recently appointed Shadow Minister for Home Affairs Joe Giglio, filed a suit against The Shift over an article it published reporting that the firm had set up companies in Malta for Marian Kočner – the Slovak businessman charged with ordering the murder of journalist Jan Kuciak – that were allegedly linked to VAT fraud.

E&S Consultancy’s Christian Ellul and Karl Schranz engaged Giglio, who filed three libel cases against Matthew Caruana Galizia and one against both theshiftnews.com and Caroline Muscat, the author of the article. The Court did not consider the libel case filed against the news portal as it could not be considered to have a juridical personality and as such the case could not proceed against the portal.

The Court proceeded to deliver judgement on the cases against Caroline Muscat and Matthew Caruana Galizia.

The case against Muscat took aim at an article published by The Shift on 15 March 2019 titled, ‘The man charged with Jan Kuciak’s murder, his links to Malta and what a safe can reveal‘. The report had focused on Marian Kočner, the man accused of commissioning the murder of Jan Kuciak, and his links to Malta through companies set up for him by Ellul and Schranz. Ellul was married for some time to Kocner’s daughter.

In the judgment concerning the libel suits against Muscat, Magistrate Rachel Montebello noted that not only was the murder of Jan Kuciak possibly linked to his work, “a most cowardly attack on freedom of expression”, but it was even more so “when the arrest and prosecution of the entrepreneur Kočner took place only a few months after the arrest and prosecution in Malta of an entrepreneur in connection with the murder of journalist Daphne Caruana Galizia, whose murder is also alleged to have been carried out in connection with her investigative journalistic work”.

The magistrate concluded that the reporting on all matters related to Kuciak’s murder “may not be regarded as anything less than a publication about a matter of public interest and a publication made in the public interest” and that the facts quoted in The Shift’s article were correct.

The Court added: “From the evidence presented it appears that the reference to the same company… is justified by an investigation carried out by the defendant (Muscat) personally as well as by what was already published in other articles on the same matter locally as well as abroad. Therefore, in no way can the disputed publication be considered the fruit of irresponsible journalism.”

Reacting to the news, Caroline Muscat said: “Despite the legal challenges thrown at us from both sides of the political divide over the last five years, we’re proud to say we haven’t lost a single libel case. That’s a testament to the careful research we conduct for every story. We are appreciative of the way the Court gave such strong rulings in favour of press freedom”.

In 2020, the Malta Financial Services Authority (MFSA) banned Christian Ellul and his business partner Karl Schranz from taking any positions in licensed companies for five years for “lack of honesty and integrity”. The two argued in court that this was somehow tied to The Shift’s article. This was ruled out by testimonies from officials in court.

One of the suits against Muscat was filed for sharing a tweet by Caruana Galizia, who commented on The Shift’s article. Similar libel suits were not filed against the dozens of other individuals who shared the same tweet, a point which the Court noted.  A separate libel case initiated by E & S Consultancy over Caruana Galizia’s original Twitter post was also won by Caruana Galizia.

The Court said that retweets of Caruana Galizia’s post are not subject to libel proceedings under the Media and Defamation Act, which states that no separate proceedings can be brought against individuals other than the publisher or editor for the same defamation.

The Court, in the other cases, found that Caruana Galizia’s comments were an honest opinion and “an honest person could easily, legitimately and honestly form the same opinions”.

Nor, said the Court, was there any evidence that Caruana Galizia had acted “maliciously” with an intention to spark controversy or to damage the applicants, even by omitting certain facts.

Magistrate Rachel Montebello concluded the tweets could not have damaged the company’s reputation. “The Court sees absolutely nothing in these retweets that could be actionable in addition to the original publication,” she ruled.

Lawyer Andrew Borg Cardona was the defence lawyer for The Shift.