A SLAPP in the face of media intimidation

This week, the European Commission unveiled a proposal to clamp down on cross-border libel suits aimed at silencing journalists.

The proposal takes direct aim at ‘strategic lawsuits against public participation’ - commonly known as ‘SLAPPs’ - which are used primarily to prevent or penalise talk on public interest issues, by exposing the media to disproportionate court expenses.

This is, of course, directly relevant to the situation concerning press freedoms in Malta. SLAPP action - or the threat thereof - reached a climax here in 2017: when the practice was used against Maltese journalists and media houses, including murdered journalist Daphne Caruana Galizia, by the now shuttered Pilatus Bank that was being investigated over money laundering.

Indeed, as European Commissioner Vera Jourova commented at the launch this week: Daphne Caruana Galizia, alone, “had more than 40 lawsuits of this type at home and abroad.”

It was not just for this reason, however, that legislation against SLAPP lawsuits was needed. The MaltaToday newsroom had faced numerous SLAPP threats before the Pilatus Bank affair: and regrettably, not without some success.

Expensive London court-actions had in fact dissuaded various MaltaToday reports into (among others) the interests of an international oil company in Malta’s bunkering industry; an investigation into consultancy money paid on the development of Malta Life Sciences Park; and details related to an international footballer management firm with political connections in Eastern Europe and Turkey.

Earlier still, this newspaper’s investigations into the local tuna-ranching industry had likewise been shut down by vexatious lawsuits: only this time, in the local courts.

The same strategy has also been variously used against other media houses; as well as individual bloggers, for decades. In all such cases, the objective was clear: small newspapers are unable to fight an expensive lawsuit, so the threat alone is enough to spike a news story. 

It is with such force that the global rich and the economically powerful can wield the necessary influence to shut down a free press.

From this perspective, it is significant that the Commission’s proposal does not limit itself to cross-border libel suits. The anti-SLAPP initiative also adopts a complementary recommendation to encourage member states to align their rules with the proposed EU law, also for domestic cases and in all proceedings, not only civil matters.

It also calls on member states to take a range of other measures, such as training and awareness raising, to fight against SLAPPs.

The legislative proposal also enables judges to swiftly dismiss manifestly unfounded lawsuits against journalists and human rights defenders. It also establishes several procedural safeguards and remedies, such as compensation for damages, and dissuasive penalties for launching abusive lawsuits.

All things considered, this proposal – which represents the cumulative input of various organisations, including the pan-European anti-SLAPP coalition CASE – does appear to effectively address most, if not all, of the major concerns with this practice.

As a newspaper which has been campaigning for effective anti-SLAPP legislation for well over a decade, MaltaToday can only welcome this latest development, which brings us one crucial step closer to that target.

Nonetheless, we are not quite there yet. The proposed directive will still have to be negotiated and adopted by the European Parliament and the Council, before it can become EU law. And while broad consensus appears to exist, it must be remembered that the final decision ultimately rests with Member States: including Malta, where the government has a long history of resisting such ‘interferences’ in local matters.

Moreover, an earlier Commission proposal for a ‘New Migration Pact’ – unveiled with similar fanfare in September 2020 – has yet to see the light of day, two years later.

Admittedly, the anti-SLAPP proposal is not likely to suffer the same fate; as the levels of resistance to the Migration Pact, by individual EU member states, was far greater than that against this directive.

All the same, what we are looking at remains a proposal that has yet to be discussed – and, possibly, changed – before being finally implemented. As such, it might be premature to declare victory at this stage.

But this only strengthens the argument that individual member states – Malta, first and foremost – must also play their part in approving the final law. And this process does not need to wait for the issue to be discussed at Council of Ministers level, either.

Indeed, the proposal itself recommends that “member states adopt national legal frameworks that provide the necessary safeguards, similar to those at EU level, to address domestic cases of SLAPPs”; and that “member states would also need to ensure that their rules applicable to defamation, which is one of the most common grounds for launching SLAPPs, do not have an unjustified impact on the freedom of expression, on the existence of an open, free and plural media environment, and on public participation.”

There is nothing – apart, perhaps, from the Maltese government’s own reluctance – that is currently stopping us from implementing those recommendations today: even before the proposal’s final approval.

One expects, therefore, that the government of Malta will now join what Jourova described as a “David and Goliath fight”; only this time, taking the side of David; not Goliath.