A judgment that stands out like a beacon of hope

In a significant sentence delivered last week, Mr Justice Toni Abela dismissed a request for the enforcement in Malta of an American court’s judgment that awarded €660 million in damages.

The case concerned a defamation law suit filed in Florida and which the initiator sought to enforce in Malta on the bases that the defendant had acquired a Maltese passport.

The Maltese judge highlighted several issues that prevented him from taking cognisance of the US court’s judgment on the basis that it went against public order. This included the negative impact the amount itself could have on the right to freedom of expression as exercised in Malta.

Abela argued that the amount in damages awarded by the US court for defamation far exceeded the maximum amount allowed by Maltese law for similar cases.

The judge said the “stratospheric” amount was “incompatible” with the manner by which the Maltese State always considered defamation cases.

“While the Maltese State always wanted persons guilty of defamation to be liable to pay damages, it did not want such an amount to have a chilling effect, not only on the individual but also on society in general and particularly on the media,” Abela noted in his judgment.

Additionally, he underscored the fact that when the old Press Act was replaced by the Media and Defamation Act in 2018, the maximum amount in damages a court could award for defamation remained unchanged at €11,000.

The judge also made reference to the anti-SLAPP legal notice introduced last year, which protects from judgments delivered in foreign courts that are deemed abusive.

“The court strongly believes the Maltese State does not permit these amounts in damages for defamation and so this becomes a matter of public order. If this court were to approve the execution of this sentence it would be allowing that which the Maltese State does not want to allow entry through the door to enter through the window and every Maltese citizen could be exposed to [defamation] procedures in the US for any opinion expressed online,” Abela argued. He went on to stress that as a matter of public order, the Maltese State gives higher value to freedom of expression than the financial deterrent associated with defamation.

Abela’s judgment is important because it confirms the Maltese courts’ long-held tradition of giving significant weight to freedom of expression when deciding on defamation cases. It also captures the essence of what Maltese legislators have held dear until now – ensuring that penalties in libel and defamation cases do not end up creating a chilling effect on everyone else.

The judgment also carries significance in today’s context when several government exponents, including Justice Minister Jonathan Attard, are arguing for higher penalties in defamation cases, while refusing to extend the anti-SLAPP protection introduced last year to domestic cases.

Government exponents use Labour MP Carmelo Abela’s case to buttress their arguments in favour of higher defamation penalties. They are also using his case to defend their proposal to stifle the right of ordinary citizens to request magisterial inquiries even if the two issues are totally unrelated.

But what did really happen in the Carmelo Abela case? The MP felt defamed by claims made by Jason Azzopardi that he had been involved in the 2010 HSBC Bank hold-up. Carmelo Abela filed a libel suit and won it. Abela was awarded €7,000 in damages by the court. Is it enough? In its evaluation of the facts at hand, the court did not feel it necessary to award the highest possible damages set at law – €11,000. Within this context, using Carmelo Abela’s case to justify higher penalty limits, or even the reintroduction of criminal libel, is a non sequitur.

At a time when the government seems like a runaway train willing to bulldoze over journalists and critics, Mr Justice Abela’s judgment stands out like a beacon of hope.

We will not hold our breath waiting for anyone in government to even acknowledge or take note of what the judge has argued because Robert Abela’s administration is in self-preservation mode.

Over the past two years, the Prime Minister has hit out at journalists, accusing them of being part of the ‘establishment’; he has accused the Vitals magistrate of ‘political terrorism’; taken pot-shots at the magistrate in the Jean Paul Sofia inquest; criticised the Ombudsman over his damning report on the prison under former chief Alex Dalli; ignored warnings by the social partners in relation to the proposed reform of magisterial inquiries; and inexplicably intervened in ongoing corruption cases being heard in court by publicly declaring that certain individuals are innocent.

The Labour government may bank on its continued popularity in the polls but this does not justify its growing arrogance and disdain towards whoever is critical of its actions. Those who forget the past are condemned to repeat its mistakes.