Towards a stronger, freer press

Would it be a bad idea for small Malta to champion an EU-wide action to protect national newspapers and journalists from ruinous SLAPP lawsuits... rather than just reject the idea on legal grounds that may not exist tomorrow?

Cartoon by Mikiel Galea
Cartoon by Mikiel Galea

The Media and Defamation Act (MADA), passed by parliament this week, represents an important step towards a stronger media. Nonetheless, the survival of the press in Malta, and its contribution to democracy, still need to be strengthened further.

Government’s decision to reject an Opposition amendment on SLAPP procedures – though legally sound – may have been short-sighted.

A SLAPP lawsuit is intended to censor, intimidate, and silence critics by burdening them with astronomical legal costs. Last week, independent legal analysts described the problematic aspect of the Opposition amendment. Reassuringly, Maltese courts do not enforce the orders of non-EU courts when Maltese defendants do not respond to the claims filed against them; but under EU regulations, a plaintiff in another member state is free to bring forward a claim against a defendant in another member state, which means a Maltese newspaper is financially liable if expensive lawsuits are filed against it in, for instance, a London court. This is the supremacy of EU law to our Code of Civil Procedure.

But this must be viewed in the context of a European Parliament request for the Commission to introduce legislation protecting independent media from vexatious lawsuits intended to silence them. Would it be a bad idea for small Malta to champion an EU-wide action to protect national newspapers and journalists from ruinous SLAPP lawsuits... rather than just reject the idea on legal grounds that may not exist tomorrow?

SLAPP threats have been made against the MaltaToday newsroom well before the Pilatus Bank ruckus: expensive London actions dissuaded various reports into 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 more recently, details related to an international footballer management firm with political connections in Eastern Europe and Turkey.

The objective was clear: a small newspaper is 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. Surely, the new media law should take such matters into consideration.

Having said this, MADA has introduced crucial reforms that can only be described as essential to the survival of the Maltese press.

By creating a preliminary forum for two parties to agree on an out-of-court solution, it offers a cheaper and more expedient route to resolution than litigation in the courts. And by restricting libel cases to the competence of the Magistrates’ Court, damages remain capped within reasonable limits. In the awarding of damages, the Court will also be obliged to consider the effect that the payment of damages will have on the person that is ordered to pay. There will be no criminal consequence (but civil claims) on an unpublished right of reply, while criminal libel is now abolished.

The removal of criminal libel, and the elimination of the crime of contempt towards the President of Malta, are important parts of the new law. As is the limitation of one libel action per story, rather than a succession of libel stories that can be filed by the rich and powerful to debilitate journalists and their employers. Defamation by the spoken word and not through publication will not be a criminal offence anymore (it will be still the subject of a civil action with maximum damages of €5,000). The Code of Organisation and Civil Procedure will be amended so that any kind of precautionary measures in cases of libel cannot be issued.

This is a very important law that we welcome. The survival of the press in Malta, and its contribution to democracy, however, still needs to be strengthened.

There needs to be industry entente to look for fiscal benefits for mainstream media; a stronger union for journalists must act as a rapid response for issues affecting journalists on the job; rights and obligations should be conferred to non-mainstream media workers; and a new lobbying effort has to be made to take the media law further within the next five years.

MaltaToday wholeheartedly endorses the OSCE’s suggestion that the government reconsider the reversal of burden of proof in certain cases. In defamation law, the two main options for defence are either to place the burden of proof on the claimant, who should be required to show that the imputations are false; or on the defendant, who should prove that the allegations made are/were true. This newspaper believes that there must be instances, if not a general rule, where the onus should be placed on the plaintiff – especially at pre-tribunal stage.

Another step towards restoring trust in the media should be to elevate the press ethics commission into a more accessible ‘readers’ ombudsman’ and grievances council that the public can have recourse too, to gain just satisfaction without recourse to expensive libel suits.

A Press Council chaired by a delegate of the Ombudsman, and represented by various journalists, industry representatives, and the IGM, could be the right kind of body to receive a taxpayer-funded subvention to operate a press ethics commission and also manage an industry registration of media workers.

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