Together with Therese Comodini Cachia, Natalino Fenech, Monique Agius, and Joe Borg, I’m part of the Media Reform Initiative, an effort to ensure transparency in the process of reforming press laws and making sure that changes made enable press freedom, rather than restrict it.
This is a statement we published this morning:
The statement by the Office of the Prime Minister published on 13 September 2023 in reaction to an open letter signed by more than 130 editors, journalists, writers, artists, and activists, is replete with misleading and false statements. It is also gravely concerning as it clearly indicates that the Government plans on pushing media legislation through parliament without prior public consultation through the publication of a White Paper on media reform.
This means that the Government alone will decide how everyone’s freedom of expression will be regulated. It also means that press freedom will be regulated within parameters decided by the very Government which frequently labels investigative journalism – undertaken at great risk – as fake news or political spin, or simply treats it as irrelevant in a chilling echo of the conditions of impunity that enabled Daphne Caruana Galizia’s assassination.
The Government’s ongoing refusal to immediately publish the report by the Committee of Experts on Media is equally concerning. Although the report was ready before Parliament was adjourned the Prime Minister met the Committee only after Parliament adjourned. He then used this as a feeble excuse to justify his procrastination in publishing the report.
It bears repeating that the Committee was set up in the wake of the Public Inquiry into the circumstances of Daphne Caruana Galizia’s assassination, that its report is part of the work required to redress the systemic failures that enabled Daphne Caruana Galizia’s murder, and the public inquiry had concluded that
“[…] the State must bear responsibility for the assassination because it created an atmosphere of impunity generated from the highest levels in the heart of the administration within the Office of the Prime Minister that like an octopus spread to other entities”
The broad process of reform that is necessary to create an enabling environment for public interest journalism is best served by transparency and truth, and not by the opacity and falsehood of the process as also evidenced in the statement of the Office of the Prime Minister. In the interest of serving the truth, we fact-checked the OPM’s statement (fact-check document attached) and listed the misleading and false statements it includes.
FACT-CHECKING THE STATEMENT BY THE OFFICE OF THE PRIME MINISTER
“The Office of the Prime Minister refers to a statement published in connection with the report of the Committee of Experts Regarding the media and the attached letter.”
Editors, journalists, writers, artists, and activists sent a letter to Prime Minister Robert Abela petitioning him to publish the report of the Committee of Experts on Media, and also petitioning him to launch a public consultation through a White Paper on media reform. Their letter of petition was not a statement. The OPM’s statement issued through a DOI press release misrepresents the purpose of the letter. The letter has been published. This is the first paragraph, quoted verbatim:
“We the undersigned, journalists members and non-members of the Istitut tal-Ġurnalisti Maltin, broadcasters, researchers, civil society activists, and people who hold dear the constitutional right to free speech, inform you of our grave concern about the lack of transparency with which media reform is being conducted, considering that this is supposed to be a process intended to strengthen free speech, journalism, and participation in public discourse.”
“The moment it received the report, the Government immediately published a statement to inform that it had received this report.”
The OPM’s claim is misleading. The OPM’s press release saying that it had received the report from the Committee of Experts (“the Committee”) does not say that the OPM left the Committee waiting for almost two weeks for an appointment with the Prime Minister to hand over their report officially. When the OPM received the Committee’s report, it then proceeded to do nothing about it.
“The Government is also bound by the terms of reference to place the report on the table of the House of Representatives and this will be done on the first day that the Parliament meets.”
The OPM’s claim is misleading. The objective of the procedure of tabling a document in Parliament is to place in parliament’s records and make it accessible to the members of parliament, who under the Standing Ordersare “entitled to read, and … take extracts from or copies of all papers laid upon the “Table of the House.” Once a document is tabled in Parliament, the public may generally ask for a copy of it or if it is uploaded on the parliament’s website then the public may search for it under “Papers Laid”.
Terms of Reference which demand the tabling of the report in parliament reflect a limited form of transparency within the parliamentary framework, but do not exclude or exonerate a Government from being transparent with and accountable to the public by publishing that report through other means, as Minister of Justice Jonathan Attard himself showed when he published the Committee’s first report at a press conference on 28 September 2022.
The Government uses the Department of Information’s services to publish any statement or material it wants to reach the public. Ministries upload information including reports on their websites. Moreover, nothing stops the OPM from sending a copy of the report to the Speaker of the House even while parliament is in summer recess.
The OPM’s statement implies that the Prime Minister has deliberately chosen to not publish the Committee’s report, curbing public debate on freedom of expression including press freedom – the foundation of public debate in a democracy – and controlling the extent of that public debate by limiting itself to parliamentary procedure.
“After a number of extensions were requested the report was passed to the Government when the Parliament was adjourned, and the intention of the Government is that as soon as the Parliament is meeting again this report will be published on the first day and therefore at the first possibility.”
The OPM’s claim is misleading. As explained above, the OPM is obliged to be transparent and has other options to publish the report. The OPM did not set an appointment to receive the Committee’s report until parliament had adjourned for the summer. The OPM could and should have published the report weeks ago through other ordinary ways of publication but chose not to.
“The report will be published in full with complete transparency as the Government has always shown in this process.”
The Government’s claim to have “always shown complete transparency in this process” is grossly exaggerated. By refusing to publish the report outside the parliamentary process, the Government denies stakeholders – including the media themselves – access to information on a reform process that affects them directly.
As explained above, the Government has several means of publishing the second report of the Committee besides tabling it in parliament, yet publication of the report is already more than six weeks overdue. The OPM’s promise to table the report in October is really a threat to further delay publication, perpetuating the lack of transparency the Government has ensured throughout this process.
Events since the launch of the Committee of Experts on Media show that the entire process of following up on the recommendations of the Public Inquiry into the circumstances of Daphne Caruana Galizia’s assassination has been shrouded in secrecy. Examples of the lack of “complete transparency” include the following.
- The government published the terms of reference and the draft laws it gave to the Committee, and claims to have consulted. But government has never published the outcome of that claimed consultation.
- The Office of the OSCE Representative on Freedom of the Media (OSCE RFoM) carried out a legal analysis of the draft legislation the Government gave to the Committee. The OSCE RFoM’s legal analysis identified a number of deficiencies in those Government proposed drafts and found that they do not fully comply with international standards. The OSCE reports were not published by the Government, nor did the Government give them to the Committee. OSCE RFoM, rather than the Government, published these reports itself: report of February 2022 and October 2021.
III. International media freedom NGOs have repeatedly and consistently called out the “lack of transparency by both the government and an expert committee on media reforms had been evident at every stage of the process”.
“Regarding the consultation process, the Government recalls that it had already drafted a number of laws that would greatly strengthen the profession of journalism and it was on its own initiative that it passed them on to the Committee of Experts for its first response.
“Based on the response of a report it received, which was also published, the Government submitted laws in Parliament.”
The claims, especially the claim that its laws “would greatly strengthen the profession of journalism”, are misleading.
The Public Inquiry into the circumstances of Daphne Caruana Galizia’s assassination (“Public Inquiry”) recommended the setting up of a Committee of Experts to advise the Government on the implementation of the report’s recommendations. The Committee was meant to be appointed before legislation was drafted and the laws the Government presented were deemed unfit by experts.
The Public Inquiry board presented its report to Prime Minister Abela on 29 July 2021. The Government drafted its legislation months before appointing the Committee of Experts on 11 January 2022.
The OPM’s claim that its proposals greatly strengthen the profession of journalism is incorrect. Both the draft laws that OPM gave the Committee for their comments, and the Bills that the Government presented in Parliament in October 2022 have been heavily criticised as ineffective and failing to meet international standards. Press freedom and free expression experts and stakeholders criticised the proposed laws, and repeatedly called for effective and transparent public consultation. Examples of this criticism include the following.
- An independent expert appointed by the OSCE Representative on Freedom of the Media legally analysed the draft laws the OPM gave to the Committee. On 1 March 2022 the OSCE Representative stated the following:
“I encourage the Maltese authorities to carefully review this legal analysis and to take into account its recommendations. Transparent consultations with the Committee of Media Experts, civil society, media and other national and international key actors must be ensured prior to the discussion and adoption of this important legislation by the Parliament. It is paramount that the upcoming legal reforms provide better protections to journalists online and offline, pave the way for free access to government-held information and create an environment conducive to safe and independent journalism in Malta.”
- Article 19, a leading global organisation with expertise on freedom of expression, analysed the proposed laws and stated the following:
“While we welcome the government’s initiative to address these issues, we remain concerned that these proposals will not be comprehensive enough to address the challenges journalists face when exercising their right to freedom of expression. Particularly, we note the lack of a proper framework to prevent strategic litigation against public participation (SLAPP). In our analysis, we raise concerns that the proposals do not address a range of issues that journalists face, from harassment to lengthy court proceedings for defamation. We encourage the government to take further steps to meet its international human rights obligations and fully protect and promote a safe media environment in Malta by offering a range of recommendations for how the proposals can fully ensure the protection of journalists.”
III. 36 freedom of expression and press freedom organisations signed a statement issued by the Media Freedom Rapid Response network denouncing “government’s lack of ambition and transparency in press freedom reforms and renews calls for full justice for Daphne Caruana Galizia”.
- The government’s draft anti-slapp legislation was heavily criticised in a legal analysis published by 5 international free expression and press freedom organisations. The iNGOs made several recommendations.
- On 10 October 2022, the IGM wrote to Prime Minister Abela expressing their disappointment in the laws government presented to parliament, debunking government’s claim that there had been wide consultation, stating that the government proposed “changes are not bold enough and fall short of what we imagined could have been achieved for the protection of journalists and freedom of expression”. The IGM noted “the serious criticism made by colleagues and people in the media sector about the bills. But there has also been criticism about the committee’s own report, particularly when it comes to anti-SLAPP legislation, in light of recommendations made by the European Commission on SLAPPs in the EU, as well as other international organisations, among other things.” Furthermore, IGM noted that “Our colleagues in the media believe the proposals made by government do not offer the best possible protection to journalists and fail to create the necessary enabling environment.”
- On 12 September 2022, a group of journalists and other media actors in a letter addressed to the President of the IGM expressed their disagreement on the media reform process, referring to a process without consultation and which lacked transparency.
It is important to note that the draft legislation the Government presented at a press conference on 28 September 2022 and tabled in parliament the following October ignored the most critical aspects of the Committee’s own recommendations. Despite public outrage at the lack of transparency, the absence of public consultation, and the inadequacy of the proposed legislation, the Government proceeded to table the draft legislation as soon as parliament reconvened in October 2022.
“Although a consultation had already taken place, the Institute of Maltese Journalists felt that more consultation should take place. The Government had no problem.”
The OPM here makes two claims. These are:
- that consultation had taken place before it presented its Bills in parliament. This is a false claim. As indicated above, the IGM itself debunked the Government’s claims of a wide consultation. No consultation had taken place. Furthermore, ten press freedom and free expression organisations publicly denied the Prime Minister’s claim that he had consulted them. There were multiple calls for public consultation by several press freedom and free expression organisations; the European Parliament; the OSCE Representative on Freedom of the Media; the Council of Europe Commissioner for Human Rights; Daphne Caruana Galizia’s parents; editors, journalists, academics, and activists; CSOs; the Daphne Caruana Galizia Foundation; rather than solely by the Institute of Maltese Journalists, as yesterday’s OPM statement suggests.
- that government had no problem with this. This claim is misleading. By letter dated 13 October 2022 Prime Minister Abela informed Former Justice Michael Mallia as Chair of the Committee, that at a meeting the IGM had asked for further consultation (“konsultazzjoni ulterjuri”) and that he finds no objection for the Committee to carry out that consultation. Several stakeholders (see above) including the IGM had publicly called for consultation as there had been none.
“Once again the Committee of Experts was entrusted with this process and the Committee undertook to widen the consultation so much that it even organized a conference for this purpose.”
This statement is misleading.
Public consultation on draft legislation and Government policy is normally led by the Ministry or public authority responsible for the sector. For this purpose, the Government set up the official public consultation website. Government has also issued the public sector with a standard procedure on the process for centralised online consultations. Yet, in his letter to the Committee, the Prime Minister divested his Government of the responsibility to lead a public consultation on media reform and assigned that responsibility to the Committee (“On my part, I inform you that I do not find any objection to the Committee proceeding in this way…”).
The Committee, accepting to take on a government’s responsibility, organised a one-off half-day event in February 2023 and set up an email address to receive submissions for a limited time. A draft agenda for the event placed online indicated the participation of a foreign speaker who in reality did not participate personally in the event. The Minister for Justice was invited to participate but instead chose to attend a constituency event and did not assign a representative to participate in the event. The event consisted mainly in the Committee members informing those present of the content of the Committee’s first report.
In a letter addressed to the Prime Minister, international freedom of expression and press freedom NGOs described the event as a “box-ticking exercise”. The 2023 Malta report published by the Centre for Media Pluralism and Media Freedom, titled Monitoring Media Pluralism in the Digital Era Application of the Media concludes as follows:
“Whilst noting that a somewhat wider consultation by the Committee of Experts in Media, as proposed in the last MPM, did happen, more discussions will need to take place, since consultation seems to have been limited to a poorly attended three hour seminar during which journalists and interested parties were informed of the Committee’s proposals. Nonetheless, some issues are in need of urgent attention. … There needs to be a collaborative effort at implementing the much needed media reform, by means of a process that is transparent and truly inclusive of all stakeholders. Maltese newsrooms deserve much better, and political rhetoric, coupled with soundbites that further put journalists at risk, need to stop and be replaced by a genuine will to strengthen the profession and offer the support that is required.”
Although international press freedom and free expression organisations repeatedly offered their technical expertise to the OPM on the process and substance of reforms, the OPM refused to even meet them, while the Committee only sought their feedback on the anti-slapp regime. The feedback given by the iNGOs indicates that they considered the Committee’s latest anti-slapp regime to be lacking and weak. The iNGOs have made several recommendations.
There was no other form or instance of public consultation.
“A few weeks ago the Committee handed in the final report which will now be evaluated and the legislative process can be carried out.”
In a situation where the conditions that enabled Daphne Caruana Galizia’s murder have not yet been redressed by the implementation of the Public Inquiry’s recommendations, where journalists continue to face threats, abuse and negative political rhetoric, the Government’s declaration that it has not yet evaluated the Committee’s report, still less acted on it, and that it will push its legislation through parliament without public consultation is disturbing. Furthermore, this claim clearly indicates that:
- the government has had the Committee’s report for weeks and chose not to publish it;
- the Government has not evaluated that report, despite having received it several weeks ago;
iii. the Government will draft its own legislative proposals without publishing a White Paper for public consultation, and that we are to expect legislation that will greatly affect our freedom of expression, the foundation of democracy, to be run through parliament when and how the government chooses.
“This is a process where the Government has neither kept nor will keep anything secret, while it has never closed the door to consultation.”
This claim is false.
- Government has refused at least two independent Freedom of Information requests for a copy of the Committee’s final report, which were presented to the OPM. The OPM has chosen to keep the report secret at least until parliament holds its first sitting in October 2023, delaying its publication for at least two months.
- Moreover, the Government conceded to a limited and ineffective public consultation only after two of the Committee’s members threatened to resign and only after several stakeholders, experts and international organisations called on the Government to halt the legislation process it had already started in the absence of public consultation.
III. The OPM statement clearly shows that the Government plans to push its legislation through parliament without first launching a public open consultation.