Can the spreading of false news as a criminal offence hinder freedom of expression?

Abstract

This term paper asks whether the spreading of false news as a criminal offence can hinder, or infringe, freedom of expression. It begins by analysing article 82 of the Maltese Criminal Code, together with relevant jurisprudence. Through the considered case law, it emerges that article 82 is wide in its scope, and Courts give variable interpretations to it. The paper then proceeds to scrutinize freedom of expression, with particular focus on the freedom of the press, which falls under the same article 10 of the European Convention on Human Rights. The restrictions on freedom of expression, principally listed in 10(2) are dealt with conjointly with the three-part cumulative test which determines whether an interference by a State infringes freedom of expression or not. Moreover, freedom of expression under the Maltese Constitution is briefly examined and contrasted to the Convention. The last section is dedicated to the concurrent analysis of both, false news as a criminal offence and freedom of expression, against a social and political backdrop. Reports and declarations issued by the European Union and the United Nations are taken into consideration, to fully form a holistic overview on the subject matter. Furthermore, positions asserted by Non-Governmental Organisations working in favour of freedom of speech and journalists demonstrate the importance of the freedom of the press, and the potential harm criminal sanctions such as article 82 could inflict on individuals, minorities, politicians and journalists. It concludes that not only can article 82 hinder freedom of expression, but it essentially infringes it, mostly due to its vague nature. This is also substantiated by international case law through comparative research, namely the Canadian Supreme Court Case of R v. Zundel. Ultimately, it answers the question posed by the paper in the affirmative.