Caruana Galizia Sons vs Planning Authority — Freedom of Expression Victory

Family of assassinated journalist wins constitutional case after PA removes memorial banner demanding accountability — €5,000 each

Civil Court First Hall (Constitutional Jurisdiction) · Hon. Justice Lorraine Schembri Orland LL.D., M.Jur. · 16 July 2019

Following the assassination of journalist Daphne Caruana Galizia on 16 October 2017, her husband and three sons placed a banner on private property in Old Bakery Street, Valletta. The banner read: 'Why aren't Keith Schembri and Konrad Mizzi in prison, Police Commissioner? Why isn't your wife being investigated by the police Joseph Muscat? Who paid for Daphne Caruana Galizia to be blown up after she asked these questions?' The Planning Authority issued an enforcement notice and removed the banner, citing Legal Notice 36 of 2018 and planning regulations on billboards and advertisements. The family brought a constitutional application arguing this violated their right to freedom of expression. The court upheld their claim and awarded €5,000 compensation to each of the four applicants.

The Constitutional Court found that the Planning Authority's enforcement action violated the applicants' right to freedom of expression under Article 10 of the ECHR (incorporated via Ch. 319) and Article 41 of the Constitution of Malta. The court held that: (1) the banner was clearly political expression — one of the highest forms of protected speech; (2) the regulatory framework relied upon by the PA (LN 36/2018 governing billboards and advertisements) did not satisfy the requirement of 'quality of law' — it was insufficiently precise to justify restricting political expression; (3) even if the legal basis had been adequate, removing a banner calling for accountability over a journalist's assassination was not 'necessary in a democratic society'. The PA was ordered to pay €5,000 compensation to each of the four applicants (€20,000 total), plus interest, plus all legal costs.

• Article 41 of the Constitution of Malta and Article 10 ECHR protect freedom of expression — any restriction must be (1) prescribed by law, (2) pursue a legitimate aim, and (3) be necessary in a democratic society
• Political speech — especially calls for public accountability — receives the highest level of constitutional protection and can only be restricted in the most exceptional circumstances
• The 'quality of law' requirement means any law restricting expression must be sufficiently precise and accessible — vague or overly broad regulations fail this test
• The Planning Authority's enforcement of billboard/advertisement regulations against a political memorial banner was found to be an improper use of planning powers to suppress political speech
• The Constitutional Court can award compensation directly against a public authority for human rights violations — here €5,000 per applicant (€20,000 total) against the Planning Authority
• Private property owners have the right to display political messages on their own property — planning law cannot be used to prohibit this unless the restriction is clearly prescribed, legitimate and proportionate
• The case established that calls for political accountability — even highly critical ones naming serving government officials — are protected expression that the State cannot suppress through administrative enforcement