Is there a case for defamation or not?

In the case Euro Resort Investments Limited (the “Plaintiff”) vs. Madeleine Bonnici (the “Defendant”) decided on the 30 July 2021, the Court of Appeal, sitting in its inferior jurisdiction and presided over by honourable judge Lawrence Mintoff, delved into and examined the conditions which one needs to satisfy when brining an action for defamation.

Facts of the Case

The case under examination concerned an individual (the Defendant) who rented out an apartment from a company (the Plaintiff), through booking.com. Upon termination of the rental agreement, a portion of the deposit which the Defendant had paid was retained by the Plaintiff, due to damages made to the said property.

The Defendant proceeded to leave a negative rating and review (via booking.com), stating that the individual responsible for looking after the apartment was “the worst host ever, with bad manners”, a poor overall rating was also given by the Defendant.

Through such appeal, the Plaintiff is claiming that such reviews were left purposely and with the intention to taint the company’s reputation. The Defendant, on the other hand, is claiming that she simply exercised her right to express her honest opinion.

The Court of Magistrates (the “COM”)

The COM first explained that in 2014 the Press Act (Chapter 248 of the Laws of Malta) was replaced by the Media and Defamation Act (Chapter 579 of the Laws of Malta) (the “Act”). The Act introduced more stringent and onerous requirements which nowadays need to be satisfied in order to successfully bring an action for defamation.

Prior to the introduction of the Act, an action for defamation required a threshold which “was one of substantiality …: a publication will convey a defamatory meaning if it substantially affects in an adverse manner the attitude of other people towards the claimant, or has a tendency to do so”, that is, if a statement would “substantially affect the claimant’s reputation … or have a tendency to do so. …” then, under the previous law, the party against whom defamatory statements have been made, could have succeeded in making his claim.

The Media and Defamation Act

The Act brought with it more onerous requirements, that is, the element of “serious harm”. The judgment in question revolved around two fundamental provisions of law, these being: article 3(4) of the Act and Article 4(2) of the Act, which, respectively state that:

“statements are not defamatory unless they cause serious harm or are likely to seriously harm the reputation of the specific person or persons making the claim: Provided that, for the purposes of this article, harm to the reputation of a body that trades for profit is not serious harm unless it has caused or is likely to cause serious financial loss”.

“It is a defence to an action for defamation for the defendant to show that all the following conditions are met: (a) the statement complained of was a statement of opinion; (b) the statement complained of indicated, whether in general or specific terms, the basis of the opinion; (c) that an honest person could have held the opinion on the basis of (i) any fact which existed at the time the statement complained of was published; or (ii) anything asserted to be a fact in a privileged statement published before the statement complained of.”

Likely to Cause Serious Financial Loss

The COM ruled that a body corporate need not suffer actual financial loss to successfully institute an action for defamation. Potential financial loss could be just as detrimental to a business. On this note, the COM concluded that the requirement to prove serious financial loss was successfully instituted, given that that the comments made by the Defendant had a negative effect on the overall business of the Plaintiff and resulted in a lack of bookings (through booking.com) in 2019.

“The worst host ever with bad manners”. The COM ruled that the Defendant, in giving her ratings and in making such statement, was expressing her honest opinion, as one is entitled to do in accordance with article 4(2) of the Act.

Court of Appeal (the “Court”)

The Plaintiffs appealed the decision of the COM as they still felt aggrieved by the fact that following such comments, their apartment was no longer being rented out as frequently by third parties from booking.com (their best platform).

Although the Court ruled that the expression of an honest opinion does not amount to a defamatory statement being made (as this would run contrary to the right to freedom of expression), and, although the Court agrees that the Plaintiff should have been conscious of the possibility that negative comments and ratings may be left (given that booking.com provides the option for this), the Court does not believe that the overall poor ratings and the gravity of the comments made, were actually required.

The Court therefore proceeded to assess the quantity of damages due, in accordance with article 11(1) and (4) of the Act.

“In assessing the sum being awarded under this Act in an action for defamation, the Court shall take into account: (a) the gravity and extent of the defamation or the extent to which the defamation is likely to injure the reputation of the plaintiff; (b) whether the defendant exercised due diligence before publishing the defamatory matter; (c) whether the defendant made or offered to make an apology to the plaintiff or to publish a clarification to the satisfaction of the plaintiff before the action or as soon afterwards as the defendant had an opportunity of doing so in case of commencement of the action before there was an opportunity of making or offering such apology or clarification”.

“In assessing the sum to be awarded in an action for defamation the Court shall also in such manner as it may consider appropriate in the interests of proportionality, take into account the economic capacity of the defendant and the impact which the payment of the sum to be awarded is likely to have on the newspaper, broadcaster, website, journalist or other media actor”.

After assessment of the above, the court ruled that the Defendant was due to pay the Plaintiff EUR 200 for moral damages.