In its judgement delivered on the 1 November 2021 in the names of Joseph Vella v. Mary Helen sive Mariella Strout, the Court of Magistrates, presided over by Magistrate Rachel Montebello, considered the mechanics of slander under Maltese law.
In brief, the pertinent facts of the case are as follows.
Background
Via application to this effect dated the 7 December 2018, the plaintiff (Vella) alleged that the defendant (Strout) had maliciously defamed and/or slandered his integrity during a heated meeting held at the local council of St. Paul's Bay, where, according to the plaintiff, the defendant informed all those present that he (the plaintiff) had threatened her and verbally attacked her on multiple occasions via the social media platform 'Whatsapp'. By way of a remedy for the reputational damage allegedly sustained, the plaintiff demanded the award of moral damages as set out in Article 9 of the Media and Defamation Act (Chapter 579 of the Laws of Malta) (the "Act"), which establishes a maximum threshold of €5000 in this regard.
In her response to the plaintiff's application, the defendant maintained that this was not a matter of defamation and/or slander, but that rather, the words uttered had been conveyed in the appropriate forum (i.e. the meeting), and that as a result, the requisites at law for defamation or slander to occur did not subsist.
The Court's considerations
In the course of its considerations, the Court immediately remarked that notwithstanding the non-committal nature of the plaintiff's application (which made prima facie reference to both defamation and slander), the merits of the action brought by the plaintiff would be analysed solely from the lens of slander. This was not only the result of a subsequent admission which was made by the plaintiff to this effect, but also the effect of the extent of moral damages being demanded by the plaintiff, which were inherently linked to slander under the above-cited Article 9 of the Act.
The Court also focused on the defendant's assertion that defamation and/or slander could not subsist owing to the forum within which the allegedly defamatory and/or slanderous words were uttered and noted that this specific element did not operate so as to automatically exclude the existence of defamation and/or slander.
The Court then proceeded to consider the relevant provisions of the Act, namely the definitions of 'defamation' and 'slander' (both of which cross-refer to one another) – i.e.:
"slander" means defamation by spoken statements uttered with malice;
"defamation" is the communication of a statement that seriously harms the reputation of a person and includes libel and slander.
Pursuant to the definitions found at law, the Court confirmed that for an action of slander to succeed, the onus lay on the plaintiff to prove to the Court's satisfaction that:
- the allegedly slanderous words caused, or could cause, serious reputational harm; and
- the slanderous words were uttered with malice.
The Court emphasised that these two criteria were cumulative. With reference to the second criterion in particular, the Court specified that the onus of proving the alleged malice lay with the aggrieved party. In other words, the plaintiff was expected to convince the Court that the words uttered by the defendant were not based on a genuine conviction on her part, but that rather, they were motivated by malicious intent. To this effect, the Court cited Matthew Collins QC's Collins on Defamation, which establishes that:
"...knowledge of the falsity of a defamatory statement will ordinarily be conclusive evidence of malice... Malice may also be inferred from a defendant's ill-will, prejudice, bias, recklessness, lack of positive belief in the truth of what is published, or improper motive..."
"Malice cannot be inferred solely from the use of inflammatory or exaggerated language, or a failure to retract and apologise."
The Court considered that the first criterion relating to serious reputational harm had been introduced only recently upon enactment of the Act, and that it established a far more taxing threshold for the success of an action of slander than previously envisaged under the Press Act (which has now been repealed). On this basis, the Court opined that serious reputational harm would occur if and in so far as a particular statement seriously affected the attitude of others towards the aggrieved party. One would also need to consider the context within which the words were uttered, and pursuant to Gatley's On Libel and Slander:
"whether a publication has caused or is likely to cause, serious harm is likely to require a careful investigation of facts of the particular case and in particular the inherent gravity of the allegation, the nature and status of the publisher and publishee, the claimant's current reputation and financial position, and whether similar allegations have been published before."
In considering the specific circumstances of the case, the Court weighed in on a number of points, and noted that, inter alia:
- the plaintiff had publicly criticised the local council's executive committee in the run up to the meeting;
- the plaintiff had published sensitive internal emails which had been circulated by the defendant to her fellow counsellors on his 'Facebook' page;
- the defendant had flagged the plaintiff's questionable behaviour via email to the local government authorities and had also filed a police report to this effect; and
- a number of 'Whatsapp' messages described by the plaintiff as being a joke were in actual fact sarcastic and could be considered to constitute subtle threats disguised as humour.
On this basis, the Court proceeded to consider whether the cumulative elements required for slander to subsist had been duly satisfied. As for the first criterion, the Court deduced that the allegedly slanderous language did not cause any actual or potential serious reputational harm, and that the words uttered had to be measured against the context in which they were expressed – i.e., during a public meeting in which the defendant was forced to defend her position as Secretary General of the local council's executive, after the plaintiff had insisted that an agenda item be included to this effect. The Court therefore remarked that as a result of his actions, the plaintiff had effectively exposed himself to a (legitimate) reaction by the defendant; which reaction was naturally based on the entirety of the plaintiff's behaviour towards the defendant up until that point.
As for the second criterion, the Court remarked that the plaintiff's actions had effectively provoked the sentiment expressed by the defendant during the aforementioned meeting. More so, the Court excluded the possibility of the defendant's words having been motivated by malicious intent on the basis of the fact that she had been made to feel as though she was under siege by the plaintiff.
The Court's conclusions
In view of the above, the Court concluded that neither of the cumulative elements required at law for the offence of slander to subsist had been satisfied, and consequently proceeded to reject the plaintiff's request for the liquidation of moral damages.
The following report was first published in the Malta Independent.
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