I earlier this month mused about suing Malta under European human rights law for the local media’s dismal inability to acknowledge polite requests from me to set the record straight on wild claims about me in some Malta newspapers and websites.

Malta lawyer Etienne Caleja lays it on the line:

Well, you can’t sue Malta under the ECHR for two reasons:

1.  To do that first of all, you’d have to exhaust all remedies available in your home country. This means starting your case in the lower courts and taking it all they way up to HOL – and, perhaps more importantly,

2.  You’d have to show that Malta has a juridical interest – which it clearly doesn’t. It isn’t the State of Malta but, as you correctly state, the Maltese media outlets that are traducing you. Can you sue a private organisation before the ECHR for an infringement of your fundamental rights – sadly, the answer has to be a flat no; and – perhaps even more important and fundamental

 

3.  Does traducing you amount to a breach of your rights under the ECHR ?- again even here the answer is no. There is no right, whether fundamental or political, that protects the individual from being traduced. Certainly, there may be civil as well as penal remedies that may be available to those aggrieved by this behaviour, measures which vary in extent as well as sanction according to jurisdiction. However, the pan-European Charter does not conceive of the notion of a fundamental right to be not traduced – sorry. 

 

Pretty persuasive, m’lud?

 

Yet…

 

Those arguments turn on the technicality that Malta is a state, separate from its errant media.

But is this substantively true?

 

Could Malta, precisely because it is a small and tightly knit island population where everyone seems to know or be related to everyone else be deemed in law to have the form of a state but the substance of a single private organism, richly deserving a lawsuit when it conspires as a whole to traduce an innocent foreigner?

 

In other words, that it is impossible for Malta as a whole to deny responsibility for its individual citizens, as their behaviour and that of the state is indistinguishable?

 

That it would be unjust for Malta and its population to hide behind the curtain of this formal statehood in these specific circumstances?

 

Argumentum ab impossibilii plurimum valet in lege?

 

Nullus commodum capere potest ex sua injuria propria?

 

Hmm. But I still need to find a cause of action which will be fast-tracked to the ECHR…