New media law will not require commentators to register - government

The government yesterday clarified that the new media law unveiled last Tuesday amid growing controversy over Minister Chris Cardona’s move to freeze the assets of journalist Daphne Caruana Galizia in advance of libel cases he has filed against her, will not require people who make comments online to register with the authorities.

In a statement, the government said it is following the public discussion on the new law, which, it highlighted, will do away with criminal libel and introduce new systems of mediation in civil cases.

The government said that there is no direct or indirect intention to introduce a system making it obligatory for people to register in order to be able to comment online. This, the government said, is spin created by the Nationalist Party.

The government explained, “What the new law is proposing is that, just as editors of newspapers, television and radio stations must be registered, so should editors of news portals.”

This requirement to register, however, has not been received very well. Earlier this week, the Malta Information Technology Law Association (MITLA) blasted the proposed defamation laws as “a serious threat to Internet Freedoms” and “a perverse affront to basic online rights and the ability of citizens to use the internet as a tool to exercise free speech”.

MITLA – which currently has over 200 members hailing from the legal, professional and technical professions – expressed concern over the proposed obligations for websites that carry news content and whose editorial decisions are taken in Malta to be registered in a Media Register; failure to do so can land a website with a fine of up to €1,000.

“It is unfortunate to note that such a registration scheme is similar to a number of repressive laws introduced in totalitarian states such as China, Bangladesh and, most notably, Russia through its infamous ‘ Bloggers’ Law’, by virtue of which certain websites require registration with the State; a direct curtailment of freedom of speech online.

“The internet,” the body aid, “is a bastion of activity and free expression – registration will put this under government control.”

On the proposed law’s definition of such websites as “any web-based news service or other web-based service relating to news or current affairs that operates from Malta or in respect of which editorial decisions are taken in Malta”, MITLA noted that a literal interpretation of this definition implies that any website that contains information about ‘news’ and/or ‘current affairs’, both of which remain undefined terms, will require such registration, which in turn can be nullified after three months of inactivity.

“Such obligations,” MITLA said, “are unprecedented in modern democratic societies.”

On the proposed law’s definition of ‘printed matter’, which has been updated to include ‘any media content and any material uploaded on a website’, MITLA noted: “Local case law has already recognised the applicability of the Press Act to online environments. Therefore, the reason for this inclusion, especially in the light of the territorial and substantive limitations of the proposed definition for website, is highly questionable.”

In general, MITLA observed that the new law aims to put websites on an equal footing with printed newspapers “without any appreciation of the realities that technology and the internet, as well as the rights and freedoms associated with their use, cannot be simply considered as identical to traditional press channels in such a draconian fashion”.

MITLA also noted the attempts made by those who drafted proposed law to utilise the UK Defamation Act 2013 as a model. The issues surrounding this approach are twofold, MITLA pointed out.

“Firstly, the proposed law contains important omissions from the UK model and secondly, the sections of UK law regarding websites remain highly controversial and heavily criticized for their rigid complexity. Furthermore, the UK Defamation Act 2013 contains no obligation for websites to be registered with the State, as is the case with the proposed law (MADA).

It is immediately apparent that Article 12 of MADA is modelled on Section 5 of the UK Defamation Act yet with notable differences, MITLA said.

While the Section 5(2) of the UK version states that “It is a defence for the operator to show that it was not the operator who posted the statement on the website”, MADA’s version states that “It is a defence in mitigation of damages for the editor to show that it was not the operator or person who posted the statement on the website”. [emphasis added]. The proposal puts the editor under undue risk for actions which are not his or her own thus creating a culture of restrained control while snubbing expression.

Furthermore, under MADA, the procedures and powers regarding notice of complaints as well as the action required to be taken by website editors in response to a notice and action relating to the identity or contact details of persons posting statements is completely the sole prerogative of the Minister, who may make provisions to this effect.

But the Maltese version, MITLA points out, does not seem to include the restriction found under UK law, specifically Section 5(9) which states: “A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament”.

MITLA said it is “extremely concerned to see regression into a legal framework which concentrates prerogative power in the figure of the Minister”.

MITLA refers to guidance published by the UK Ministry of Justice that makes it clear that Section 5 of the UK Defamation Act 2013 only relates to operators of websites hosting user-generated content. The situation under MADA however, appears to be different as it applies to all “websites” thus widening the net of control cast on online activity.

Over the past two years, there has been harsh criticism in the UK regarding Section 5, where complicated and burdensome procedures set out in the law are in effect. As a result, website operators are increasingly deciding to simply remove posts immediately without following the procedure, which subsequently could result in a serious (and often unnecessary) curtailment of freedom of expression.

MITLA also stressed that Parliament should discuss the Digital Rights Bill, amending the Constitution, presented in 2014 in order to guarantee that the proposed rights of right to informational access, informational freedom and digital informational self-determination find their place as enforceable rights in our Constitution.

“Any further delay, it said, “will continue putting our basic internet freedoms, as evidenced by the proposed Media and Defamation Act in serious jeopardy.”