A SLAPP in the face of justice

Recent events in Malta have time and again illustrated the need for Maltese media to operate in freedom, without undue pressure or constraints. The emphasis is on ‘undue’: just as the press must be free to pursue its vocation, citizens must also be protected from abuse of press power. This is why libel laws exist, in this country as everywhere else.

But such protection cannot be allowed to extend beyond its brief, and become a weapon for silencing the media even in cases of fair comment and legitimate reporting. Unfortunately, such seems to be the direction Malta’s press freedoms seem to have taken in recent months.

The rise of SLAPP lawsuits is worrying, to say the least. A ‘strategic lawsuit against public participation’ (SLAPP) is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defence until they abandon their criticism or opposition.

The tactic is employed by rich organisations that use the threat of expensive lawsuits in foreign jurisdictions to force news organisations to cave in to pressure. The Maltese media, in fact, discovered the immense burden of international lawsuits, when Pilatus Bank – and later Henley and Partners – started threatening newspapers, including MaltaToday, with libel suits in the US. After seeking legal advice, this newspaper opted to withdraw the articles: not because they were wrong, but because it could not afford the astronomical costs of fighting a lawsuit in the United States. Other newspapers did likewise.

This alone illustrates the true danger of SLAPP procedures. Newspapers have a right and duty – upheld by the Constitution – to inform the public on matters of public interest. Such procedures only create loopholes that enable companies and corporations to buy their way out of justified press scrutiny.

It must be stressed that the nature of the lawsuit makes it de facto impossible to defend one’s case. A newspaper would have to close down altogether to meet the costs. So apart from the censorship issue, there is also a rule of law issue at stake. Justice must be equal for everyone, not only for those who can afford it.

But instead of insuring our country against such abuse of power, SLAPP lawsuits have become more commonplace. Henley and Partners, the company which manages the Individual Investor Programme Maltese passport scheme, had launched a new offensive in the days before Christmas, threatening news outlet The Shift News with financially ruinous lawsuits in America and England unless they took down certain news stories.

Murdered journalist Daphne Caruana Galizia had also received similar threats of legal action from the same company.

Within this context, the PN’s decision to file a private members’ Bill to introduce anti-SLAPP legislation is commendable. While the revamped media law, put forward by Owen Bonnici, represents an important step forward for freedom of expression, it does nothing to directly address the threat of SLAPP.

The proposed new law, which was written by PN MP Jason Azzopardi, seeks to make any judgement of any court outside Malta, on alleged defamation, handed down against Maltese residents, to be considered “contrary to the public policy or to the internal public law of Malta” when the defendant would not have defended the case on its merits in the foreign court.

In a second amendment, this time to the Press Act, the Bill proposes that it shall be a matter of the public policy of Malta that proceedings in respect of any publication, made by a person or entity normally resident or domiciled in or operating within Malta, shall be brought in a Maltese court and that these courts will have exclusive jurisdiction to hear and determine such proceedings “irrespective of whether the publication in question is hosted or otherwise broadcast from servers located outside Malta”.

From a press freedoms and justice perspective, one can only agree with both the aims and the terms of this Bill. Nor would it be unreasonable to expect cross-party consensus, on an issue that both PN and Labour are on paper committed to address. Within this context, the government should clearly say whether, at the level of principle, it agrees with the PN proposal. In comments to this paper, Owen Bonnici said that government is ‘seeking legal advice’ before taking up a formal position. This is well and good, in so far as the actual amendment is concerned. But it would not be amiss to explain what his government thinks of the matter in more general terms. So far, the Labour Party has not specifically condemned SLAPP lawsuits, or signalled any clear intention to legislate in the matter. One appreciates the caution in seeking legal advice, but it must be stressed that the issue is pressing: news organisations are still under threat from SLAPP as we speak.

If the government has the will to protect the Maltese media from expensive, frivolous international lawsuits, it will find a way to agree with the Opposition: at least, with regard to the overall intention... whether or not the Bill itself may need fine-tuning.

Surely, we can at least reach consensus on the core issue at stake: the importance of the free press remaining free.