REQUIREMENTS AS TO STANDARDS AND PRACTICE ON THE PROMOTION OF RACIAL EQUALITY

SUBSIDIARY LEGISLATION 350.26

REQUIREMENTS AS TO STANDARDS AND

PRACTICE ON THE PROMOTION

OF RACIAL EQUALITY

30th April, 2007

GOVERNMENT NOTICE 413 of 2007, as amended by Act XI of 2018.

The title of these requirements is the Requirements as to

Standards and Practice on the Promotion of Racial Equality.

International Law

Crimes of racial hatred as a limitation or restriction to freedom

of expression are referred to in Article 4 of the UN Convention on

the Elimination of All Forms of Racial Discrimination - which

Convention has been adhered to by Malta - when it provides that

"State parties condemn all propaganda and all

organizations which are based on ideas or theories of

superiority of one race or group of persons of one

colour or ethnic origin, or which attempt to justify or

promote racial hatred and discrimination in any form,

and undertake to adopt immediate and positive

measures designed to eradicate all incitement to, or

acts of, such discrimination and, to this end, ….... shall

declare an offence punishable by law all dissemination

of ideas based on racial superiority or hatred,

incitement to racial discrimination, as well as all acts

of violence or incitement to such acts against any race

or group of persons of another colour or ethnic origin,

and also the provision of any assistance to racist

activities, including the financing thereof...........…".

The international community views with great alarm activities

based on racial hatred so much so that the United Nations requires

Member States to outlaw such conduct. There is also no doubt that

such laws do impinge on freedom of expression. However, the mere

fact that racist speech is involved does not automatically mean that

a state can punish such discourse. If there is a threat to the

democratic order or to the basic assumption of democratic states so

that the interference with a person’s speech is necessary for the

protection of the rights of others and in the interest of national

security, then the matter might take a different twist. In other

words, freedom of expression as contained in both article 41 of the

Constitution of Malta and article 10 of the European Convention of

Human Rights and Fundamental Freedoms (as well as other

international instruments such as the United Nations International

Covenant on Civil and Political Rights, etc.) allows as an exception

thereto certain discourse which falls within the limitations referred

to in article 41(2) of the Constitution of Malta and article 10(2) of

the European Convention of Human Rights and Fundamental

Freedoms.

European Law

Apart from Article 10 of the European Convention on Human

Rights and Fundamental Freedoms, reference is to be made to

Article 7, paragraph 1 of the Council of Europe’s Transfrontier

Television Convention which states that

"All items of programme services, as concerns their

presentation and content, shall respect the dignity of

the human being and the fundamental rights of others.

In particular, they shall not ............. give undue

prominence to violence or be likely to incite to racial

hatred.".

On the other hand, the European Union’s Television Without

Frontiers Directive states in Article 22a that

"Member States shall ensure that broadcasts do not

contain any incitement to hatred on grounds of race,

sex, religion or nationality.".

During the meeting of the High Level Group of Regulatory

Authorities in the Fields of Broadcasting held in Brussels on 17th

March 2005, it was agreed between the European Commission and

Regulatory Authorities in Europe that effective supervision of hate

speech can only be guaranteed through strong cooperation between

Regulatory Authorities in Europe.

Maltese Law

Maltese Law regulates racial hatred in the following laws

Article 45 of the Constitution of Malta which prohibits

discrimination on the grounds of race. No law can make any

provision that is discriminatory either of itself or in its effect.

Article 45 (3) defines discriminatin as follows

"45. (3) In this article, the expression "discriminatory"

means affording different treatment to different

persons attributable wholly or mainly to their

respective descriptions by race, place of origin,

political opinions, colour, creed or sex whereby

persons of one such description are subjected to

disabilities or restrictions to which persons of another

such description are not made subject or are accorded

privileges or advantages which are not accorded to

persons of another such description.".

Article 14 of the European Convention of Human Rights and

Fundamental Freedoms also prohibits discrimination as follows

"14. The enjoyment of the rights and freedoms set

forth in this Convention shall be secured without

discrimination on any ground such as sex, race, colour,

language, religion, political or other opinion, national

or social origin, association with a national minority,

property, birth or other status.".

Article 82A of the Criminal Code reads as follows

"82A. (1) Whosoever uses any threatening, abusive or

insulting words or behaviour, or displays any written

or printed material which is threatening, abusive or

insulting, or otherwise conducts himself in such a

manner, with intent thereby to stir up racial hatred or

whereby racial hatred is likely, having regard to all the

circumstances, to be stirred up shall, on conviction, be

liable to imprisonment for a term from six to eighteen

months.

(2) For the purposes of the foregoing subarticle

"racial hatred" means hatred against a group of persons

in Malta defined by reference to colour, race,

nationality (including citizenship) or ethnic or national

origins.

The Criminal Code also provides that in the case of several

specified crimes * the punishment is increased by one or two

degrees when the offence is racially or religiously aggravated, that

is,

a)

if at the time of committing the offence, or

immediately before or after the commission of the

offence, the offender demonstrates towards the victim

of the offence hostility based on the victim’s

membership which in relation to a racial or religious

group, includes association with members of that

group, or presumed membership (that is, membership

presumed by the offender) of a racial or religious

group; or

b)

the offence is motivated, wholly or partly, by hostility

towards members of a racial group based on their

membership as presumed by the offender to that group.

For the purposes of the Criminal Code, "racial group" means a

group of persons defined by reference to race, colour, nationality

(including citizenship) or ethnic or national origins, and "religious

group" means a group of persons defined by reference to religious

belief or lack of religious belief.

Article 6 of the Press Act reads as follows

Deleted By XI.2018.29.

Article 13(2)(a) of the Broadcasting Act reads as follows

"13.(2) It shall be the duty of the Authority to satisfy

itself that, so far as possible, the programmes

broadcast by persons providing sound or television

broadcasting services in Malta comply with the

following requirements, that is to say

a)

that nothing is included in the programmes

*The specified crimes where the punishment is increased as aforesaid are the case of

wilful offences against the person (bodily harm, whether grevious or slight); threats;

blackmail; private violence; causing explosion likely to endanger life or property;

where death or greviously bodily harm is caused by the explosion; discharge, etc., of

lethal device; arson endangering life; arson to the common danger; arson without

danger of life; arson of vineyards, etc; destruction by the springing of a mine; and

spoil, damage or injury in general.

which offends against religious sentiment, good

taste or decency or is likely to encourage or

incite to crime or to lead to disorder or to be

offensive to public feeling.

Legal Interpretation

In this respect, article 13(2)(a) of the Broadcasting Act when

read in conjunction with article 82A of the Criminal Code do not

violate freedom of expression even if they tend to restrict its

exercise within a democratic society which is based on the rule of

law.

Bearing the above international, European and national law on

the subject, the Authority has adopted these Requirements as to

Standards and Practice hereunder in virtue of article 20(3) of the

Broadcasting Act, Chapter 350 of the Laws of Malta, to assist local

producers and broadcasters in their civic obligation to promote

racial equality as well as when dealing with matters which might

relate to racial hatred.

Requirements

Promotion of Racial Equality, Tolerance and Diversity

1.1 Broadcasters must be proactive by promoting racial

equality in their programming.

1.2 Broadcasters must exert a judicious decision when

selecting presenters and participants during a programme dealing

with racism. In making such a selection, broadcasters must not

invite persons with racist ideas and opinions.

1.3 In their programming, broadcasters are to foster a

multicultural society. This could be done, for instance, by ensuring,

as far as possible, that racial groups are represented by members of

the racial groups themselves, and by providing space to inform on

other cultures present amongst the Maltese population and their

perception of the Maltese culture and attitudes.

1.4 When discussing multicultural issues, broadcasters are to

include the views of persons from different ethnic and religious

backgrounds rather than report their views second hand.

Broadcasters must take into account the linguistic and cultural

differences which may be experienced by the interviewee and all

necessary steps must be taken to place the interviewee at ease and

to reflect the interview faithfully.

Prohibition of Illegal Content

2.1

No programme may contain any matter contrary to law.

Respect for Human Dignity and Treatment of Racial

Groups

3.1 Viewers and listeners have a right to expect that

broadcasters will assume their responsibility to respect and to

p r om o t e h u m a n d i gn it y, i n r e s pe c t o f b ot h i n di v id ua ls an d

individuals as members of groups.

3.2

Individuals must not be exploited or caused unnecessary

distress, nor should the audience be made to feel that they are mere

voyeurs of others’ distress.

3.3 The likely effects of both mis-representation and under-

representation must be taken into account when portraying

vulnerable racial groups.

Racial Hatred

4.1 Programmes that are likely to stir up racial hatred should

not be transmitted. Programme schedules must give a fair reflection

of the contribution of all races to society.

4.2 Racist terms are to be avoided. As insensitive comments or

stereotyped portrayal cause offence, their inclusion is acceptable

only where it can be justified within the context of the programme.

4.3 Careful account has to be taken of the possible effect upon

the ethnic group concerned, as well as the population as a whole,

and of changes in public attitudes to what is, and is not, acceptable.

Discrimination and respect for National and Ethnic Values

5.1 The presentation or portrayal of people in a way which is

likely to encourage denigration of or discrimination against any

person or section of the community on account of race, ethnicity,

nationality or colour must be avoided. This requirement is not

intended to prevent the broadcast of material which is factual, or

the expression of genuinely-held opinion in a news or current

affairs programme, or in the legitimate context of a humorous,

satirical or dramatic work.

5.2 The broadcasting media must at all times be aware of the

danger that arises when media, deliberately or by inadvertence,

encourages discrimination and intolerance. Mindful of this danger,

the broadcasting media have to be aware of the fact that they cannot

incite or inflame hatred or inequality on grounds of ethnicity,

nationality, race or colour, or incite criminal acts of violence as all

these are prohibited by law.

5.3 The act of remaining impartial when citing events of racial

hatred may be tantamount to supporting them. Hence all

broadcasters must clearly state their position against racial

discrimination.

5.4 Broadcasters are to avoid prejudicial or insulting

references to a person’s ethnic group, nationality, race or colour.

Reference to a person’s ethnic group, nationality, race or colour

must be made only when directly relevant to the event being

reported.

5.5 A broadcaster has to respect national and ethnic values. In

doing so, a broadcaster must not air material, which encourages

discrimination on the grounds of ethnicity, race, nationality or

colour.

Violence against specific groups

6.1 Broadcasters must not air programmes which sanction,

promote or glamorise violence based on race, nation or ethnic

origin or colour.

Political Opposition and Refugees

7.1 When reporting on countries where opposition to the

government entails a risk to life and limb, broadcasters must

always consider whether mentioning names or visual images could

lead to the identification and persecution of the persons concerned.

The same applies to reports on refugees. The broadcast of details

identifying refugees, their escape routes and the manner in which

they prepared and executed their escape might endanger the

families and friends those refugees left behind or close escape

channels for other refugees. Where in doubt the broadcasters

should exercise utmost diligence to protect the identity of the

refugee or asylum seeker. In accordance with the Data Protection

Act, legally permission is to be sought for the printing or the

broadcasting of a photograph of any person, and therefore such

permission is to be sought beforehand.

Acts of violence covering ethnic disputes or clashes

8.1 News, views or comments relating to local ethnic or

religious disputes or clashes must only be broadcast after proper

verification of facts and must be presented with due caution and

restraint and in a manner which is conducive to the creation of an

atmosphere congenial to national harmony, amity and peace.

8.2 Sensational, provocative and alarming headlines and

programming must be avoided.

8.3 News reports of commentaries must not be written in a

manner likely to inflame the passion, aggravate the tension or

accentuate strained relations between the communities concerned.

Hence the use of inflammatory language and terms which put

ethnic or religious groups into a negative light should also be

avoided.

8.4 Programmes which could potentially exacerbate communal

trouble must not be broadcast.

8.5 The juxtaposing of programmes aimed at reporting of

negative news and promoting racial equality must be dealt with

sensitively, bearing in mind the final impact on viewers and

listeners.

What Broadcasters Ought To Do

9.1

Steer clear of exploiting prejudice.

9.2

Check the facts.

9.3 Do not let the broadcaster’s news agenda be driven by the

way others are handling the issue.

9.4

Look behind the story line.

9.5

Listen to the people the broadcaster is writing about.

9.6

Do not label if it is not relevant.

9.7

Take the longer term view into account.

9.8 Remember each person of different ethnic or religious

background is entitled to respect of human dignity. Hence, they

should be addressed with the same respect accorded to others.

9.9 Racial equality is a fundamental human right which the

broadcaster and all viewers and listeners have a duty to observe.

Self-Regulation by the Broadcasting Media

10.1 Broadcasters should set up an easy-access complaints

procedure and pro-actively inform the public and specifically

vulnerable groups as to such procedure.

10.2 Media owners and registered editors should strongly

support these Requirements.

10.3 Media owners should promote ethical standards amongst

editors and journalists and raise awareness about these

Requirements. Training on these Requirements should be a

standard element of journalistic training.