One does not safeguard rights by infringing others

A recent court order, which prevented an episode from Xarabank from being aired last Friday, has elicited numerous reactions. Media organisations have jointly expressed their serious reservations about the implications for the freedom of the press. But outside journalistic spheres, many have welcomed the initiative as a safeguard against a ‘trial by media’.

To be fair, the main argument supporting the ban is not trivial. The general public is quite justified in fearing the ‘trial by media’ scenario. Too often have we seen individual criminal cases influenced by excessive public discussion… often as not on the social media, which are largely unfettered by editorial restraints.

In this particular case, concerns have been amplified by the specific details. The Liam Debono criminal trial is a matter that generates emotive reactions, more so because of the tragic consequences it has entailed for PC Simon Schembri – who lost an arm in the incident – and its implications for the safety of the Maltese police force on the job.

It is understandable that people would be outraged by the fact that Xarabank would offer a public platform for the accused, at a time when he was still undergoing criminal proceedings in court. Nor does it help that the programme in question has a reputation – deserved or otherwise – for ‘sensationalising’ such matters.

Presenter Peppi Azzopardi has argued that the interview itself steered clear of details that may compromise the trial. Clearly, however, his assurance has not placated concerns that the interview would nonetheless sway public opinion, possibly to the extent of applying pressure on the law-courts when adjudicating the case.

But while the concern is justifiable, it does not follow that the initiative of blocking the programme is to be welcomed. The issue here goes well beyond this one particular case: it points towards the wide discretionary powers granted to the law courts to prohibit reports on sub judice proceedings.

Article 517 of the Criminal Code grants the court of criminal justice the power to prohibit any publication of proceedings before their termination, for contempt of court. This discretionary power was employed by Magistrate Joe Mifsud, partly on the advice of the Attorney General: who actively proclaimed that the use of Article 517 should be a remedy for journalistic endeavours that fall foul of ethical standards.

It is to be expected that an interview with a 17-year-old accused of attempted murder deserves the highest form of journalistic treatment, with rigorous editorial scrutiny, and attention paid to the psychological state of the accused, as well as the possible consequences for a young person undergoing judicial proceedings. It is also debatable whether such an interview is in the public interest at all, considering the role played by Public Broadcasting Services as a broadcaster with editorial considerations that go beyond TV ratings.

These are factors which necessitate a great deal of introspection for both Xarabank’s producers and PBS on the way television should be used and made for the entertainment or education of viewers, especially when touching upon such a sensitive issue as the Liam Debono case.

However, given the legal recourse taken up by the victim in the case, and the active encouragement of the Attorney General’s office to frame this interview as a form of contempt towards legal proceedings, this extreme measure may endanger the freedom of the press, and the way broadcasters discuss matters of national importance that can also be sub judice.

Suffice it to say that all court reports are matters that are sub judice; so are the great debates and exclusive reports on the country’s major criminal cases and trials. This reporting takes place both inside the courtroom, as well as outside the courtroom.

By not hearing opposing legal counsel to this request, the magistrate who issued this gagging order on Xarabank appears to have opened the floodgates for similar requests that imply some form of contempt of court by reporting on a case that is sub judice, or by giving exclusive attention to any one party of a criminal case. This is quite frankly unprecedented in the recent history of journalism.

Moreover, the Attorney General’s approach to Article 571 raises serious questions about freedom of expression. While acknowledging that the freedom to report may not be absolute, we should not so lightly resort to outright censorship, in pursuit of fair reporting.

The Broadcasting Authority, as the regulator of Maltese television, should ideally be empowered to listen to complaints in the same vein as that brought by Mr Schembri and his lawyers: to ensure that while TV producers are free to impart information – as is their fundamental human right – they are also responsible for maintaining the highest form of broadcasting and editorial standards.

The magistrate’s decree, on the other hand, appears to be insufficiently motivated towards protecting the rights of the accused from undue television exposure, and more inclined to punish journalistic endeavour that can create offence – something explicitly rejected by the European Court of Human Rights, in the Handyside case.

This could be construed as the misuse of contempt of court as a callous tool for the suppression of information. One cannot safeguard certain rights by infringing others.