A threat must be realistic and the person who is making the threat must have the means to carry out the threat. This was held in the Police vs Daniel Xuereb decided on 16 May 2024 by the Magistrates’ Court presided by Magistrate Kevan Azzopardi.
Xuereb was accused of insulting, and threatening pastor Gordon Manche on 8 March 2023 and of misusing network and communication equipment.
The Court analysed the evidence brought before it. The Police had received a complaint by Gordon Manche on a TikTok video on the stand-up comedy of Daniel Xuereb. From this clip Xuereb insulted Manche by using the word “asshole”. He also repeated a comment from the crowd which Manche took as insulting. The police agreed that the event was a stand-up comedy, however, Xuereb then praised Matt Bonanno and that was a spring board to insult Manche.
Gordon Manche testified in this case and claimed Xuereb’s event was full of lies, hate and incitement to violence against him and his family. He said he was feeling threatened. He also presented a copy of an article entitled “Biggest asshole Homophibic Sect.” After the video went viral he was insulted by people when walking in the street and as such his life changed. In cross examination, he confirmed that he did not mind being insulted if it gave pleasure to people. His complaint is that the video incites hatred.
The Court quoted Article 339(3) which reads:
“(1) Every person is guilty of a contravention against the person who –
(e) utters insults or threats not otherwise provided for in this Code, or being provoked, carries his insult beyond the limit warranted by the provocation.”
Article 49 of the Electronic Communication (Regulation) Act was amended that there is no crime if the words used are part of an artistic expression or satirical or comical or cultural in nature. The Court also quoted from the debate take took place in parliament, where Culture Minister Owen Bonnici emphasised that this amendment was in order to protect the freedom of artistic expression as long as there is a credible threat. The Opposition had agreed with the amendment.
There is agreement that the changes in the law were intended to respect the right of artistical, satirical, comical and cultural expression. However, there is an exception to the rule in that the insults should not transform into a credible threat and a risk to the personal security of an individual or individuals. Therefore, if insults are used in the context of artistic expression this is not a crime. The interpretation given to this is wide. The case in question fell under one of the categories mentioned in the law since this is not limited to theatrical performances but also includes social media. The risk is that there may be those who have a different opinion on what was said. The Court recommended caution in the exercise of the right of expression.
With regard to Manche’s claim that what Xuereb said is a threat, the Court held that this was said within the limits of the law. The court held that this does not constitute a real threat. The Court analysed the insults and held that these came after he repeated Matt Bonanno’s joke and said “certain Pastors who actually should be bombed.” This cannot be interpreted as a threat. The Court quoted from Police vs Joseph Frendo decided by the Court of Criminal Appeal on 7 July 1995. In this case, the Court held that the person who receives the threat must be convinced that the person threatening has the capability of carrying out the threat. In this case, the threat is carpet bombing. It is clear that Xuereb does not have to the means to carry out a carpet bombing and this was intended for the audience to laugh. Therefore, the threat was not credible and realistic.
The Court then moved to find Xuereb not guilty.
Av. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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