Due to legal amendments that came into force in May 2018, words declared or published on social media with the aim of slandering a person cannot be considered a criminal offence for the purposes of the Media and Defamation Act. This was stated by Magistrate Donatella M. Frendo Dimech in the case of Pulizija vs Rita Scerri heard on the 9th of April 2019.
The Court heard the charges against the accused who stood trial for Facebook comments that she posted against the victim Cassar and members of her family. The words stated by the accused included insults and profanity. For this reason, the charges against her were for firstly injuring and/or threatening the victim and/or members of her family, and secondly that she acted inappropriately through the use of electronic communication. With regards to the first charge, the prosecution dropped the charge due to the expiration of the prescription period allowed by law.
The Court delved into the problems with the evidence presented in the case. It was questioned why the police’s classified the accused’s conduct as a “serious crime” in order to obtain the necessary evidence from Facebook. It was held by the Court that in accordance with the rules within the Processing of Personal Data (Electronic Communications Sector) Regulations, a serious crime is one that carries a sentence of not less than a year. The crime could therefore not be classified as such because an action relating to slander by means of electronic communication can only be of a civil nature and is not cognisable by the criminal court due to amendments to Article 49 of Chapter 399 of the Laws of Malta.
The Court also reprimanded the prosecution for relying solely on the evidence obtained through their communication with service providers and Facebook without presenting the Court with an opportunity to examine witnesses in connection with this. It was stated that this kind of evidence constitutes hearsay evidence, which in accordance with Article 520 of the Criminal Code, is not admissible. The academic work by Professor Mamo on the topic was affirmed by the Court, wherein it was expounded that the reason for the rejection of hearsay evidence is founded on two main premises.
The first is that in these cases the facts which the prosecution relies on, cannot be confirmed under oath, and secondly that the person against whom the evidence is offered does not have the opportunity of cross-examining that other person testifying as to his recollection, veracity or means of knowledge. The Court confirmed the importance of examination of witnesses under oath in order to properly allow the accused a fair trial, and explained that hearsay evidence does not provide an adequate opportunity for this. The Court illustrated this point by stating that the police’s report revealed that the IP address from where the slanderous comment was published did not match the accused’s address and was in fact registered on someone else. Due to the insufficient evidence and witnesses presented, the Court could not go into these facts in order to establish the accused’s connection with the offence.
The Court then referred to the judgement given by the Court of Criminal Appeal in the case of Police vs Francis Frendo (2008) where the Court interpreted a threat as something that produces fear of future aggression. It was explained that when a person is threatened, the agent must have been exposing the victim to a specific unjust harm. It was held that the words stated by the accused did not amount to threats, and although they may have been inappropriate, slander cannot be considered a crime. Although the Court did not give a judgement on the first charge, it said that there could be no fault found in this regard. The accused was liberated from all guilt in relation to the second charge. It was, therefore, concluded that she was not guilty.
Av. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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