With internet connectivity growing exponentially in the past decade, large chunks of the population now have access to online tools such as blogs, online news portals and social media pages which allow everyone to voice his or her own opinion in a free, instant and unhindered manner. Through this, the average-Joe can easily create a blog, post comments on online news portals established in Malta and tweet or write Facebook statuses to share his opinions. With everyone having the instant potential of becoming an amateur journalist or a home-grown political commentator at the click of a button, the importance of effective libel law provisions is evident, if we want to ensure that citizens have legal recourse to protect their reputation.

In its traditional sense, defamatory libel refers to the insulting of a person by words, gestures, writing or drawing, committed with the intent of destroying a person's good standing and reputation, and this is mostly regulated through the Maltese Press Act which provides that any person who publishes or distributes such defamatory 'printed matter' in Malta, can be found liable to pay damages under the same Act. In its simplest form, the Press Act therefore controls defamatory comments made on printed newspapers, books and publications, as well as broadcasted comments made on television and radio. However the Press Act's definition of 'printed matter' is a very wide one which today encompasses 'any record, tape film or other means whereby words or visual images may be heard, perceived or reproduced.' Moreover, the term 'publisher' defined in the same Act, refers to publishers in the traditional sense, as well as 'any person who owns facilities for the production or reproduction of any printed matter'. In light of the wide definition given to 'printed matter', one could rightly presume that the law regulating defamatory libel is not restricted to traditional newspapers and broadcasting media, but also extends its regulatory rule to Internet libel; a growing reality around the world, with Malta being no exception.

In this regard, the Maltese Courts have also responded in their own way to this growing reality, as is evidence in a number of recent decisions in the field. First and foremost, in the case John Cassar White v Dr. Richard Sladden nomine, the Court found the defendants guilty of libel and ordering them to pay €10,000 in damages, after finding them responsible for publishing defamatory comments online. This confirms that the Court will not shy away from applying a wide-reaching interpretation of the Press Act, extending it to the internet. Defamatory comments made through online blogs have also found their way to the Maltese Courts in Police v Daphne Caruana Galizia (11th June 2012) , the Police prosecuted the prominent blogger for alleged harassment, whilst also accusing her of defamatory libel committed through her blog named 'Daphne Caruana Galizia's Running Commentary.'

While blogs and online news portals are online equivalents of printed newspapers and publications, the liability for comments posted on social media websites might be a bit less clear-cut, since social media websites such as Facebook or Twitter are not in themselves meant to be 'printed matter' for public consumption, but simply a personal way through which an individual can communicate with others, while expressing his or her opinion on everyday matters. However, with the ever-growing use of such social media pages, and with ordinary users having Facebook Friends or Twitter followers amounting to thousands, the line of demarcation between what makes a comment; a public statement rather than a private status sent to friends, is ever-fading. The simplest take on such a conundrum, is that once something is posted on the Internet (unless locked and password protected) it is irretrievably published and available to the public. In this sense, anything posted online, can easily go 'viral' with internet users having unlimited powers to share, replicate, save and distribute any content they chance upon online. With this in mind, the presumption that anything posted online is public would seem to make sense, and the Maltese Courts have also been willing to take this line of reasoning in a recent case entitled Richard Cachia Caruana v Joseph Grima. In the first case of Facebook libel in our jurisdiction, the plaintiff sued for libel, when Grima published a Facebook status claiming that Cachia Caruana owned a €5 million house in Valletta with a pool, when pools were not permitted in Valletta. In its decision, the presiding Magistrate expanded on the topic, claiming that the Court will assume that the owner of a Facebook profile is responsible for any content (libellous or otherwise) posted through it, unless the person can prove otherwise. In this light, the Court found the defendant guilty of making libellous comments through Facebook and ordered defendant to pay €5000 in damages. It is also worth noting that the presiding Magistrate makes a strong statement at the end of his judgment, where he states that this was a case of a clear abuse of freedom of expression and the social media and that the Court should sanction this behaviour with all the powers at its disposal. This coupled with the hefty fine imposed on the defendant sends a clear signal that the Maltese Courts are willing to tackle the changing landscape of libel and defamation laws, even with the law as it presently stands.

Away from our shores, cases of online defamation through social media websites such as Twitter and Facebook are proliferating in jurisdictions worldwide. Recently, Australian Courts have awarded high school teacher Ms. Mickle $105,000 in damages following a defamatory tweet by one of her students, while US and UK Courts have also been awarding considerable punitive damages in high-profile defamation cases such as The Lord McAlpine of West Green v Sally Bercow where following unconfirmed news reports of child abuse allegations against a 'leading Conservative politician', the wife of the Speaker of the House of Commons Sally Bercow tweeted: 'why is Lord McAlpine trending? *innocent face*'. Her comments tweeted to 56,000 followers were deemed to be defamatory, with the Court ruling against Ms. Bercow leading to the payment of damages which remained undisclosed.

This case however, also leads us to the interesting notion of 'repetition' of libellous comments. In the same case, Lord McAlpine threatened publicly to sue almost 10,000 Twitter users who had re-tweeted the defamatory comments made about him following the Bercow incident. The question therefore is; if Internet and Social media users share or re-tweet defamatory comments made by others, are they legally responsible for such comments which they repeat? Maltese Courts have reiterated time and again, in cases such as (Dr. Louis Galea v Joe Mifsud) that 'every republication of a libel is a new libel and each publisher is answerable for his act to the same extent as if the calumny originated from him.' This is also in line with a number of Common law cases based on the 'rule of repetition' which in the same way provides that a person repeating defamatory comments is to be treated as if he has made the allegation himself. No cases of the sort have as yet reached the Maltese Courts, however if the Court decides to apply the rule of repetition to the letter, then the users re-tweeting and re-sharing the defamatory material may also be susceptible to liability under the Press Act. Although the law appears to be technology neutral on this point, the law might also need to take into account some technical aspects related to the repetition of defamatory comments. To what extent is sharing and re-tweeting on the Social Media repeating defamatory comments? Does merely posting a hyperlink to the defamatory comment, explicitly mean that the user agrees with such content, as a consequence making him a re-publisher? And what if a person shares a defamatory comment to condemn such comments? Some have argued that the mere sharing of a hyperlink leading to the defamatory content is not tantamount to a repetition since the person is acting as a 'mere conduit', in the same way a British High Court found that Google could not be found guilty of libel, since it was not strictly speaking republishing the defamatory content.

The risks of online libel become more complex for websites and online portals having a comments-board system which allows third-party users to post comments or opinions underneath the website's content. In this scenario the owner or administrator of the website in question, could be exposed to liability (as an editor or publisher) for comments made by third parties. This is based on the loosely-defined 'noticeboard allegory' enunciated in the old English case Byrne v Deane, where a golf club secretary was found liable for defamation after failing to remove a defamatory notice stuck on the golf club notice board, which he was responsible for. A similar Maltese scenario was also brought before the Maltese Courts in Michael Falzon v Sammy Meilak et where the defendant members of the Dockyard Council were found liable for defamatory signs displayed at the dockyard's entrance. Although the defendants were not themselves responsible for putting up the sign themselves, they had failed to prove that they used their diligence to remove the defamatory sign, and were thus liable for damages as a result. In this context, it is easy to see how a news portal with a comments board can be found liable for third-party comments of a defamatory nature. Such an instance which ultimately made it to a Court of Law was the New Zealand case of Wishart v Murray, where plaintiff had written a book about a controversial murder trial of two baby twins, and the defendant created a Facebook page calling on people to boycott the plaintiff's book; on which a number of third-party users posted defamatory remarks about plaintiff. Plaintiff sued defendant for defamation, but in his defence, the defendant claimed that as the host of the Facebook page, he could not be held responsible for comments made by others. In its decision the Court used the same noticeboard analogy to compare a Facebook page or an online comments board to a notice board. Using this reasoning the Court found that if the owner of the Facebook page knew of the defamatory material and failed to remove it within reasonable time, then that failure would be tantamount to a tacit endorsement of the defamatory comments, making the owner liable for the damages which may arise.

The above cases and instances are clear proof of the effects of the Internet, and the way in which it is revolutionising every aspect of our ordinary lives, including the way in which criticize and comment about each other. Being relatively technology-neutral, the laws regulating defamatory libel are well-positioned to start adapting to such realities as we have seen in the few cases which have made it to the Court. This however, is only the first of many steps, which our law and our Courts need to take, to start appropriately tackling the effects of human interaction taking place on the Internet. Taking into consideration that the internet is a freely accessibly and instant communication tool with unlimited potential, it may be time for our Law and our Courts to start recognizing the 'power of viral' in its deliberations and calculation of damages granted for defamatory libel – since a comment made online may be spread to a reach of individuals which far exceeds that of a common local newspaper printed in a tiny state of around 400,000 citizens. Only time (and jurisprudence) will tell if this approach is to be taken.

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