Censorship is prevalent in several states and indeed one cannot conceive of a state without having censorship laws. There are always vulnerable people who need to be protected and it is the State’s duty to do so. Take, for instance, the case of children. All national laws have the best interests of children in mind when promulgating censorship laws to protect children. This is found not only at the national level but also at European and at an international level. The European Convention on Human Rights and Fundamental Freedoms is a case in point. It permits restrictions on freedom of expression for various reasons including, amongst others, ‘for the prevention of disorder or crime, for the protection of health or morals’: in other words, freedom of expression is not absolute but subject to a number of limitations. The same can be said on an international level where for instance the International Covenant on Civil and Political Rights provides in article 19, paragraph 3, that freedom of expression may be restricted ‘for respect of the rights or reputations of others’ and ‘for the protection of national security or of public order, or of public health or morals’. Hence the issue is not one of being fundamentalist or liberal but of protecting those vulnerable persons in society from harm to their well-being.

I do not know exactly which legal provisions were cited to justify the banning of Alex Vella Gera’s contribution entitled ‘Li Tkisser Sewwi’ in Realtà. Nevertheless, after having read the piece, I can come up with a list of several provisions of Maltese law which do not allow the dissemination of such type of writing. The writing, amongst others, debases women, vilifies the Roman Catholic Apostolic Religion, incites to the commission of the crime of paedophilia, and uses obscene and indecent words. All these constitute criminal offences in terms of Maltese Law. Examples of legal provisions which Vella Gera’s contribution appears to violate include, inter alia, the following provisions taken from the Criminal Code and the Press Act:

Some Pertinent Applicable Criminal Code Provisions:

Vilification of the Roman Catholic Apostolic Religion.
163. Whosoever by words, gestures, written matter, whether printed or not, or pictures or by some other visible means, publicly vilifies the Roman Catholic Apostolic Religion which is the religion of Malta, or gives offence to the Roman Catholic Apostolic Religion by vilifying those who profess such religion or its ministers, or anything which forms the object of, or is consecrated to, or is necessarily destined for Roman Catholic worship, shall, on conviction, be liable to imprisonment for a term from one to six months.

Offences against decency or morals committed in public.
209. Whosoever, … shall commit an offence against decency or morals, by any act committed in a public place or in a place exposed to the public, shall, on conviction, be liable to imprisonment for a term not exceeding three months and to a fine (multa).

Contraventions affecting public order.

Some Pertinent Applicable Press Act Provisions:

Obscene libel.

Sale of incriminated publications.
19. Any person who knowingly sells or offers for sale or distributes or imports for sale or distribution any printed matter whereby any offence against this Act is committed shall be deemed to be an accomplice and shall be liable to the same punishment as the principal offender.

Whilst the Editor of Realtà and the Author (Mr. Alex Vella Gera) can be prosecuted before the Court of Magistrates (Malta) as a court of criminal judicature for violating a number of provisions above cited, in addition article 19 of the Press Act extends its purport to cover also any person (including university students) who distributes the offending edition of Realtà whether on campus or elsewhere. Hence, the University authorities are bound not to permit the distribution of the offending edition of Realtà on campus once they are aware that its content contravenes the criminal law.

No there was no need to put any sort of warning on the front page to warn readers about the objectionable content. This is because Mr. Vella Gera’s writing is totally unacceptable from a criminal law point of view. Hence by putting a warning on the front page to the effect that the publication contains adult content does not solve the problem and is totally immaterial. The Editor of Realtà should have simply refused to publish such a piece once it contravenes Maltese Law. Of course, by publishing it, the Editor assumed responsibility for what he published and hence, together with Alex Vella Gera, is exposing himself to criminal action.

France has had a case where it has closed down a television station which was inciting racial hatred. I think that in Malta we had a case where a song was banned from being broadcast because of its obscene content and a cartoon depicting the prophet Mohammed in an objectionable way was not allowed to be broadcast on local television. The European Court of Human Rights has confirmed the United Kingdom Board of Film Classification’s ban of a blasphemous film from being projected in the cinemas (Case of Wingrove v. United Kingdom). In another case (Otto-Preminger v. Austria) the European Court of Human Rights agreed to the forfeiture of a satirical film which was deeply offensive to Christian believes even though such film was intended to be shown late at night in a private cinema. So, as can be seen from these examples, there have been cases where freedom of expression has been infringed. What is however important is that the violation in question is permitted by the law itself. It is in these cases where the law comes in to protect the state, the public and more so vulnerable people. Of course, where do you balance the freedom with the restriction depends on a case to case basis and hence it is up to a court to decide upon. Furthermore, there are laws, even in Malta, which outlaw racism or sexism. These laws constitute an exception to freedom of expression as they are enacted for the common good, in the interest of society at large: they are made in the public interest.

The internet is another medium like the rest. There has been case law which extends the provisions of the Press Act for instance to the internet. The fact that you publish a newspaper or broadcast a radio or television station over the internet does not give you any immunity from prosecution. The Broadcasting Authority for instance can licence broadcasting services on the internet. In doing so it can ensure that such services comply with the provisions of Maltese Law. Again, if Realta’, together with the offensive article is published online, it is still subject to the country’s laws. Hence, once the publication violates Maltese Law the Editor and Author of the offending piece can be prosecuted.

Yes one can sue for defamation in the context of an online comment. John Cassar White et vs. Dr Richard Sladden nomine decided by the Court of Appeal (per Mr. Justice Philip Sciberras) on 27 March 2009 is a case in point.

As I see the Lautsi v Italy judgment of the European Court of Human Rights, the Court has imposed its own morality upon the state of Italy. In so far as morals are concerned, Member States of the Council of Europe are afforded a wide margin of appreciation in view of the fact that the national authorities are nearer to their own population and hence are better equipped to gauge public sentiment, feelings, religion, moral values, etc. The Court should have respected Italy’s appreciation of facts and left it at that. However, the Court went beyond Italy’s margin of appreciation and decided to exercise a European supervisory role over the domestic authorities. I think that this was the Court’s mistake and I hope that the Grand Chamber of the European Court of Human Rights will realise this mistake and rectify it. Moreover, Latusi v Italy is bad law not only because it has not applied the Court’s own doctrine of the margin of appreciation but because, as the Court has done time and time again, it will in the future continue to extend the principles therein established in the judgment beyond educational matters. The ripple effect of this judgment will mean that crucifixes will end up having to be removed not only from state educational establishments but even from all government departments and even from churches which belong to the Government. I think that this is a ridiculous situation and the matter should be left to the domestic authorities to decide thereupon. In so far as Italy is concerned, the judgment is not yet final; in so far as Malta is concerned the situation is different because we have entered a Declaration at the time of signature, on 12 December 1966, to the First Protocol of the European Convention on Human Rights, Article 2, second sentence which states that ‘The Government of Malta … declares that the principle affirmed in the second sentence of Article 2 of the Protocol is accepted by Malta only in so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure, having regard to the fact that the population of Malta is overwhelmingly Roman Catholic.’ The second sentence aforesaid reads as follows: ‘In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.’

I think that though this referendum is expressing the will of the majority, this does not mean that the majority can take measures which appear to contravene human rights and fundamental freedoms. The minority have the right to freedom of conscience, Switzerland is a party to the European Convention of Human Rights and Fundamental freedoms (ECHR) and Switzerland has entered no reservation on the lines of rendering illegal minarets. Hence, Swiss domestic law – when taking on board the minaret prohibition referendum – will be in contravention of its obligations under the ECHR. Further, the Vienna Convention on the Law of Treaties states that no state may plead its internal law not to honour its international obligations. I think that the Swiss are in an ambivalent situation which requires rectification from their end.