CASE OF LOMBARDO AND OTHERS v. MALTA

1. The case originated in an application (no. 7333/06) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Maltese nationals, Mr M. Lombardo, Mr C. Bonello, Mr A. Debono and Mr J. Zammit (“the applicants”) on 2 February 2006.
2. The applicants were represented by Mr J. Zammit Maempel, a lawyer practising in Valletta ( Malta ). The Maltese Government (“the Government”) were represented by their Agent, Mr S. Camilleri, Attorney General.
3. On 28 May 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.
I. THE CIRCUMSTANCES OF THE CASE
4. The applicants, Mr Mark Lombardo, Mr Charles Bonello, Mr Alfred Debono and Mr John Zammit are Maltese nationals who were born in 1966, 1971, 1945 and 1963 respectively and live in Malta.
5. The first three applicants are councillors on the Fgura Local Council elected on behalf of the Nationalist Party. The fourth applicant is the editor of the newspaper “ In- Nazzjon Taghna ”.
6. In 2001 a controversy arose between the central government of Malta and the Fgura Local Council over the “ Hompesch ” Road Project (hereinafter, the “HRP”) in Fgura. The matter was brought before the domestic courts and gave rise to a political discussion in the Local Council.
7. On 24 May 2001, during a Local Council meeting, the applicants presented a motion calling for the Council to hold a public consultation meeting on the matter. The Council rejected the motion.
8. On 26 July 2001 the Fgura Mayor published an article in the newspaper “ In- Nazzjon Taghna ”.
9. On 7 August 2001 the first three applicants published an article in reply in the same newspaper. A passage of this article read as follows:
“The Fgura Local Council did not consult the public and is ignoring public opinion on the matter.”
B. Proceedings before the Court of Magistrates
10. On 26 November 2001 the Fgura Local Council sued the applicants for libel and defamation in their capacity as authors and editor of the article published on 7 August 2001. It submitted that the defendants had attributed to it specific and unproved facts with the intention of destroying or reducing its reputation.
11. The applicants challenged this claim, submitting that the article complained of amounted to fair comment. They claimed that, even though they had put forward a motion to hold a public meeting, the Local Council had failed to hold a public consultation on the matter. In the applicants'opinion, the efforts made by the Council to analyse the controversy did not amount to a public consultation.
12. By a judgment of 12 November 2002, the Court of Magistrates found in favour of the Local Council and ordered the applicants in solidum to pay 2, 000 Maltese Liri (Lm – approximately 4, 80 0 euros (EUR)) for moral damage.
13. The Court of Magistrates considered that the article complained of had been written in the context of a political controversy which had also been discussed in the local press. It stated that there had been a misunderstanding between the labour councillors and the Department of Roads. The labour councillors had proposed that part of Hompesch Road should be one- way. However, according to the article, this proposal had been rejected by the Traffic Control Board, the Public Transport Authority and the General Retailers and Traders Union. The first three applicants, in their capacity as nationalist councillors, wished to bring forward the commencement of the works and had asked the labour councillors to remove the political straightjacket. Finally, the first three applicants had stated that the Local Council had omitted to consult the public and was ignoring public opinion on the HRP.
14. However, the Court of Magistrates found that, as highlighted by the plaintiff, a number of measures had been taken in order to submit the project to public scrutiny.
15. In particular, both the Minister responsible for roads and the Director of the Department of Roads had expressed themselves publicly to the effect that discussions were being held with the Local Council regarding the matter. Moreover, it was not true, as claimed by the applicants, that the proposal that part of Hompesch Road should become one- way had been rejected. In fact, at the relevant time, two of the three authorities which had allegedly rejected the proposal had not yet been constituted. Notwithstanding that the Local Council was not bound to hold any public consultation, the matter had been brought up at a public meeting organised by it on 10 April 2001. There had also been public consultation since the project itself had commenced as a result of a public meeting held in 1995. A qualified “urban planner” had also been engaged to prepare a report on the road in question. Urban policy for the locality was based on this report and to reinforce this policy further public consultation had taken place in November 2000.
16. Furthermore, a questionnaire had been distributed locally to give residents the opportunity to express their position on the matter and a similar invitation had been made in the June/July 2001 edition of the official publication of the Local Council. On 11 June 2001 the Local Council had organised another public meeting with several bodies and on 24 July 2001 had approved the conclusions of this meeting.
17. In the Court of Magistrates'opinion, there had to be a clear distinction between an allegation of fact on which fair comment could be based and an allegation which was solely a malicious manipulation of the facts. According to the case-law of the European Court of Human Rights, a comment was justifiable only if it were fair and made bona fide. Thus, it could only be based on a fact that was proved to be true. In the present case, however, the facts alleged by the first three applicants had not been proved. From the outset of the trial, rather, it had been demonstrated that public consultation had taken place.
18. The Court of Magistrates concluded that the fourth applicant, as editor of the newspaper, had been aware of the controversy and believed that the comment of the first three applicants had been justified. Finally, he had also agreed to publish a response from the Local Council to the article in issue.
C. Proceedings before the Court of Appeal
19. The applicants appealed to the Court of Appeal. They claimed that the first- instance court had made a wrong assessment of the facts and had applied the law incorrectly. In any event, the amount awarded to the Local Council in damages was excessive.
20. By a judgment of 24 November 2003, the Court of Appeal confirmed the Court of Magistrates'finding that the publication had been libellous and defamatory. However, it decided to reduce the amount of the damages to Lm 600 (approximately EUR 1,440).
21. The Court of Appeal recalled that, as the Local Council was a public organ, the limits of acceptable criticism directed at its acts could be wider. However, the establishment, assessment and evaluation of facts were for the first-instance judge and, unless this evaluation was arbitrary or illogical, the Court of Appeal would not interfere. In the present case, on the basis of the evidence before it, the Court of Appeal found that the facts stated in the publication did not reflect the truth.
D. Proceedings before the Civil Court
22. On 13 January 2004 the applicants filed a constitutional complaint with the Civil Court (First Hall).
23. They claimed that the publication in question was a legitimate criticism of local government action which was permissible in a democratic society. Thus, the obligation to pay damages imposed on them had infringed their right to freedom of expression, as guaranteed by Article 10 of the Convention.
24. The applicants considered that their statements were part of their duty as elected councillors and that they had the right to inform the public about matters of public interest. They emphasised that the libel proceedings had not been instituted by a physical person but by a local council and that the article complained of had criticised a local government and its administrative actions. Therefore, no restrictions on their freedom of expression could be imposed.
25. In a judgment of 7 October 2004, the Civil Court rejected the applicants'claim.
26. The Civil Court observed that according to the case-law of the European Court of Human Rights, the right to freedom of expression was not absolute. In particular, the exercise of this right carried with it duties and responsibilities, which were particularly important when it came to attacking the reputation of private individuals and undermining the rights of others. Journalists had to act in good faith in order to provide accurate and reliable information.
27. The Civil Court also highlighted the importance of the balance between the right to freedom of expression and the right to reputation, honour and good name. In the present case, there was no doubt that the interference with the applicants'right to freedom of expression had a legal basis in Chapter 248 of the laws of Malta. Furthermore, it was proportionate and necessary in a democratic society for the protection of the rights of others. The Civil Court referred, in particular, to the fact that the amount of damages had been reduced and had been imposed as a result of civil proceedings.
E. Proceedings before the Constitutional Court
28. The applicants appealed to the Constitutional Court.
29. They claimed that the Civil Court had failed to examine the merits of the case. As the article complained of had contained criticism of a local government, the opinions expressed in it should enjoy a higher level of protection. Furthermore, according to the applicants, a local government did not have a reputation which required protection. Thus, statements made against it could not be held to be defamatory and libellous. The applicants finally argued that all they had done was to express their opinion that the consultation about the HRP had not been satisfactory.
30. By a judgment of 7 October 2005, the Constitutional Court upheld the Civil Court judgment.
31. Having examined the judgments given by the Court of Magistrates and by the Court of Appeal, the Constitutional Court found that the law had been applied both effectively and correctly.
32. Although the applicants had not previously raised the plea that a local council could not be defamed, the Constitutional Court addressed the matter. It stated that a local council could both defame and be defamed. Furthermore, the Constitutional Court held that although the limits of acceptable criticism were wider with respect to governments, the attribution of false facts was not protected under Article 10 of the Convention.
33. Section 3 of the Press Act, in so far as relevant, states that a press offence is committed by means of the publication or distribution in Malta of printed matter. Under Section 11 of the same Act, whosoever by such means libels any person, shall be liable to a fine upon conviction.
34. According to Section 23 of the said Act such proceedings:
“ ... may be instituted against each of the following persons:
( a ) the author, if he composed the work for the purpose of its being published, or if he consented thereto;
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
35. The applicants complained about a violation of their right to freedom of expression as provided for in Article 10 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or Submissions of those appearing before the Court crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
36. The Government contested that argument.
37. The applicants submitted that the sanctions imposed on them to pay damages and legal costs amounted to an interference with their right to freedom of expression.
38. According to the applicants, this interference did not fall within any of the limitations provided for by Article 10 § 2 the Convention, since the “protection of the rights of others” could not be interpreted as including the hypothetical rights of governments or their organs which – being abstract legal entities – did not have a reputation. While accepting that defamation of a class was an acknowledged legal concept, the applicants alleged that a libel action pertained to the individual members of such class; thus, the Fgura Local Council could not sue for libel.
39. In any case, the applicants submitted that the article published in “ In- Nazzjon Taghna ” was a legitimate criticism of the action of a local government, amounting to a value judgment which was not susceptible of proof. Recognising a “pressing social need” to protect government from criticism would give the authorities a convenient tool to diminish or eliminate freedom of expression and to negate democracy.
40. Moreover, the domestic courts'judgments, though referring to the Strasbourg case- law, had not appreciated the underlying principles enunciated by the European Court of Human Rights. The need for protection of freedom of expression became more important when it was the government, whether local or national, that was being criticised and not an individual. Moreover, it was paradoxical that three of the applicants, out of seven councillors forming the Local Council at issue, had been ordered to pay damages to protect their own reputation.
41. The applicants submitted that they had incurred losses of approximately EUR 8, 000 including the damages they had been condemned to pay. However, in their view even if they had only incurred EUR 1 the principle of freedom of expression would still have been infringed.
42. The Government accepted that the requirement for the applicants to pay damages constituted an interference with their right to freedom of expression. However, as the protection of the reputation or other rights of any physical or moral person could not be excluded from the scope of Article 10 § 2, the protection of the reputation of a Local Council could legitimately form the basis of an interference with this right. Moreover, the impugned interference was prescribed by law and was necessary in a democratic society for the purpose of responding to the pressing social need of protecting the reputation of others in terms of Article 10 § 2 of the Convention.
43. The Government submitted that the domestic courts had been correct in their approach and had acted within the State's margin of appreciation when taking their decisions. Indeed, the Court of Magistrates and the Court of Appeal had established that the applicants had made false assertions of fact to the detriment of the Council, which went beyond the scope of a value judgment or a mere exaggeration or provocation based on true facts. Such statements were not “fair” comments permissible under the Press Act in order to allow free and fair debate on matters of public interest, but rather the attribution of gratuitous falsehoods. Moreover, the applicants themselves had never put forward the defence of the truth of the facts stated by them, which was also a defence in libel proceedings according to the Press Act.
44. The Government contested the applicants'arguments regarding the interpretation given by the domestic courts. The latter, making reference to the Convention and the Court's case - law and to the importance of the right to freedom of expression in a democratic society, had found nothing which justified the attribution of outright falsehoods to others even if these had been made in the context of a political debate.
45. The Government submitted that the proceedings in question were civil not criminal in nature and it was only the amount of damages actually payable to the other party that could be identified as a sanction. The amount of legal fees and expenses, which were also moderate, could not be considered as placing a disproportionate burden on the applicants. As these damages amounted to approximately EUR 350 for each applicant, the interference had been proportionate. Therefore, it could not be said that the judgment of the domestic courts had had a “chilling effect” on political debate.
46. Consequently, in the circumstances of this case, the decisions of the domestic courts had not been incompatible with a strict interpretation of the restrictions to which the right to freedom of expression may be subjected, or with the margin of appreciation enjoyed by national authorities in identifying the existence of a “pressing social need”.
47. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(a) Whether there was interference
48. The Court notes that it is common ground between the parties that the judgments pronounced in the libel and defamation action constituted an interference with the applicants'right to freedom of expression as protected by Article 10 § 1.
(b) Whether the interference was justified
49. It is not contested that the interference was prescribed by law, namely section 11 of the Press Act (see paragraph 33 above). However, the parties disagreed as to whether it pursued the legitimate aim of protecting the reputation or rights of others, within the meaning of Article 10 § 2.
50. The Court considers that it is only in exceptional circumstances that a measure proscribing statements criticising the acts or omissions of an elected body such as a council can be justified with reference to “the protection of the rights or reputations of others”. In the instant case, it is prepared to assume that this aim can be relied on. The main issue is whether the interference was “necessary in a democratic society”.
51. The test of necessity requires the Court to determine whether the interference corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were relevant and sufficient. In assessing whether such a need exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not however unlimited, but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10. The Court's task in exercising its supervisory function is not to take the place of the national authorities, but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their margin of appreciation. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see Grinberg v. Russia, no. 23472/03, § § 26-27, 21 July 2005 ).
(ii) Application of the above principles in the instant case
52. The Court must weigh a number of factors in the balance when determining the existence of a pressing social need and reviewing the proportionality of the measure complained of. In examining the particular circumstances of the case, the Court will take the following elements into account: the position of the applicants, the position of the plaintiff in the defamation proceedings, the subject matter of the publication and the qualification of the contested statement by the domestic courts (see Jerusalem v. Austria, no. 26958/95, § 35, ECHR 2001 ‑ II ).
53. As regards the applicants'position, the Court observes that the first three applicants are councillors on the Fgura Local Council and also authors of the article in question which had been written in reply to a previous article published by the Mayor of the Fgura locality (see paragraph 8 above). In this respect the Court recalls that while freedom of expression is important for everybody, it is especially so for elected representatives of the people. They represent the electorate, draw attention to their preoccupations and defend their interests. Accordingly, interferences with their freedom of expression call for the closest scrutiny on the part of the Court (see Castells v. Spain, judgment of 23 April 1992, Series A no. 236, pp. 22-23, §, 42 ). The fourth applicant is the editor of the newspaper in which the article was published. According to the Court of Magistrates, he was aware of the controversy and had believed the comment to be justified; he had also granted the Local Council a right of reply. The Court reiterates that the press fulfils an essential function in a democratic society. Although it must not overstep certain bounds, particularly as regards the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports of Judgments and Decisions 1997 ‑ I, § 37; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999 ‑ III ). This implies acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see Radio France and Others v. France, no. 53984/00, § 37, ECHR 2004-II; Harlanova v Latvia (dec.), no. 57313/00, 3 April 2003; and McVicar v. the United Kingdom, no. 4631 1/99, §§ 83-86, ECHR 2002-III).
54. The plaintiff in the defamation action was the Fgura Local Council. The Court recalls that the limits of acceptable criticism are wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lay themselves open to close scrutiny of their words and deeds by journalists and the public at large, and they must consequently display a greater degree of tolerance (see Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 26, § 42, Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1567, § 54). Moreover, the limits of permissible criticism are wider still with regard to the government than in relation to a private citizen or even a politician. In a democratic system the actions or omissions of the Government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion (see Sener v. Turkey, no. 26680/95, § 40, 18 July 2000). It follows that a local council, being an elected political body made up of persons mandated by their constituents, it should be expected to display a high degree of tolerance to criticism.
55. The subject matter of the publication was the applicants'assessment of the situation regarding the HRP which was part of a political debate which had been discussed in the local media. The Court recalls that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see Sürek v. Turkey (no.1) [GC], no. 26682/95, § 61, ECHR 1999-IV). Therefore the Court is of the view that since the matter of the HRP was of general interest to the local community, the applicants were entitled to bring it to the public's attention through the press.
56. In view of the above factors the State's margin of appreciation in interfering with the applicants'right to freedom of expression must be construed narrowly in this case in determining whether the reasons given by the national authorities to justify the interference were relevant and sufficient.
57. As regards the qualification of the impugned statement by the domestic courts, the Court observes that they did not accept the applicants'argument that it was a value-judgment but considered it to be a statement of fact given that the Local Council had indeed taken a number of measures to submit the project to public scrutiny.
58. The Court disagrees with the conclusion reached by the domestic courts. It reiterates that it has consistently held that, in assessing whether there was a “pressing social need” capable of justifying interference with the exercise of freedom of expression, a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof (see De Haes and Gijsels, cited above, p. 235, § 42, and Harlanova v. Latvia (dec.), no. 57313/00, 3 April 2003 ).
59. The Court observes that the statement in issue consisted of two allegations: the Local Council ( i ) did not consult the public, and (ii) was ignoring public opinion on the matter. The first allegation is capable of various interpretations. It is true that even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for that statement, since even a value judgment without any factual basis to support it may be excessive (see De Haes and Gijsels, cited above, § 47, and Jerusalem, cited above § 43, ECHR 2001-II). However, in the present case, the factual basis may be found in the circumstance that the Local Council had rejected a motion presented by the applicants calling for the holding of a public consultation meeting about the HRP. The Court considers that the rejection of the applicants ’ motion provided a sufficient factual basis for the allegation that the Local Council had not consulted the public so as to allow that allegation to be construed as a value judgment. Moreover, political debate does not require unanimous agreement on the interpretation of particular words. Therefore, even assuming that it was not a value judgment, the interpretation given by the applicants is not manifestly unreasonable. The Court finds that the second allegation cannot but be classified as a value judgment, whose factual basis is indistinguishable from that above, notwithstanding the style used by the applicants which may have involved a certain degree of exaggeration. Furthermore, in the Court's view, nothing shows that the value judgments were not made in good faith.
60. The Court would in any event observe that the distinction between statements of fact and value judgments is of less significance in a case such as the present, where the impugned statement is made in the course of a lively political debate at local level and where elected officials and journalists should enjoy a wide freedom to criticise the actions of a local authority, even where the statements made may lack a clear basis in fact.
61. The Court further recalls the chilling effect that the fear of sanction has on the exercise of freedom of expression (see, mutatis mutandis, Wille v. Liechtenstein [GC], no. 28396/95, § 50, ECHR 1999-VII; Nikula v. Finland, no. 31611/96, § 54, ECHR 2002-II; and Elci and Others v. Turkey, nos. 23145/93 and 25091/94, § 714, 13 November 2003). This effect, which works to the detriment of society as a whole, is likewise a factor which goes to the proportionality of, and thus the justification for, the sanctions imposed on the applicants, who, as the Court has held above, were undeniably entitled to bring to the attention of the public the matter at issue (see, mutatis mutandis, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 114, ECHR 2004-XI). The Government in their arguments relied on the relatively lenient nature of the sanction imposed by the domestic courts. However, the Court finds that the award of damages to the defendant constituted a reprimand for the exercise by the applicants of their right to freedom of expression. Notwithstanding the relatively low amount of damages awarded, the sanction imposed could be considered to have had a chilling effect on the exercise by the applicants of their right to freedom of expression as it was capable of discouraging them from making statements critical of the Local Council's policies in the future.
62. In the light of the above considerations and taking into account the role of the press in imparting information and ideas on matters of public concern, the Court finds that the use of the phrase in issue, referring to the Local Government's conduct, did not exceed the acceptable limits of criticism. The fact that the proceedings were civil rather than criminal in nature and that the final award was relatively modest does not detract from the fact that the standards applied by the courts were not compatible with the principles embodied in Article 10 since they did not adduce “ relevant and sufficient” reasons justifying the interference at issue. Therefore, the Court considers that the domestic courts overstepped the narrow margin of appreciation afforded to them to restrict discussion on matters of public interest. It must be concluded that the interference was disproportionate to the aim pursued and not “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention.
63. There has accordingly been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
64. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
65. The applicants claimed the amount of damages they were ordered to pay by the Court of Appeal i.e. MTL 600 which according to their calculation amounted to, 1, 460 euros (EUR). They did not make a claim for non- pecuniary damage.
66. The Government did not contest this claim.
67. The Court awards the applicants EUR 1, 460, the equivalent of the sum they were ordered to pay to the plaintiff, in respect of pecuniary damage.
68. The applicants also claimed MTL 1, 086.33, as per attached bill of costs, which according to their calculation amounted to EUR 5, 285 for the costs and expenses incurred before the Court of Magistrates and the Court of Appeal. They further claimed MTL 1, 574.09, as per attached bill of costs, which according to their calculation amounted to EUR 3, 830 for the proceedings before the constitutional courts. They also claimed costs incurred in the proceedings before this Court, but submitted that they could not be quantified at that stage.
69. The Government submitted that the applicants should not be awarded the full amount of legal costs as the lawsuits were unduly provoked by their statements. In respect of the expenses incurred before the Court they could not comment on them as the claim had not been quantified.
70. According to the Court's case-law, applicants are entitled to reimbursement of their costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of MTL 2,500 which according to the Court's calculation amounts to EUR 6,000 for costs and expenses in the domestic proceedings, but dismisses the claim for costs for the Convention proceedings for lack of substantiation.