SLAPPs: 'The pressure is on us at the EP to get this right' – Roberta Metsola

As the European Commission prepares to bring the anti-SLAPP lawsuit legislation it is brokering with the European Parliament to member states for approval in the near future, Maltese MEP and co-rapporteur on the landmark legislation Roberta Metsola acknowledged, “I know the pressure is on us in the European Parliament to get this right, but I believe we have a strong basis to work with.

“The last months and weeks of discussing the proposals and the intricacies of SLAPPS with academics and civil society have furthered our perspective and understanding within the area.”

Her co-rapporteur, S&D German MEP Tiemo Wolken, stressed how, “In the EU we are proud of our rule of law and where we see abuse in our court systems, it needs to be stopped. We will make sure we protect our journalists, our civil society, and our NGOs.”

Metsola and Wolken were speaking on Thursday at a joint Legal Affairs and Civil Liberties committees hearing on tackling abusive SLAPP litigation practices in the EU.

Strategic Lawsuits Against Public Participation (SLAPPs) are primarily intended to create a chilling effect on critical media by burdening them with excessive court costs and threats of exorbitant monetary claims. This is usually done by taking libel action in other jurisdictions which levy higher libel fines and where court costs are prohibitive.

The Maltese media stands at particular risk of such lawsuits filed in foreign jurisdictions, as past experience with the now infamous Pilatus Bank has shown. Libel fines in Malta are capped at  €11,000 in consideration of economies of scale, and as such, the legislation currently being ironed out is seen as essential for Malta’s media, which, given its size, is a prime target for SLAPP lawsuits where fines can range into the tens of millions of euros, and where defending oneself in a foreign jurisdiction can cost hundreds of thousands.

It is this legal lacuna that Maltese EPP MEP Roberta Metsola and S&D German MEP Tiemo Wolken - the European Parliament’s co-rapporteurs are seeking to address through the upcoming legislation. Metsola has set a timeline to see the first vote on a final report by October, which she said would be a “watershed moment for freedom of the press, of expression and the protection of journalists.

No one in Europe should be afraid of speaking up in the public interest - Jourová

European Commission Vice President for Values and Transparency Věra Jourová, meanwhile, gave the Commission’s backing to the EP’s proposals to protect journalists against such SLAPPs but also stressed the need to protect the fundamental freedom for people to seek legal redress.

According to Jourová, the Commission is exploring linking the non-legislative components of the legislation to the Treaty, in particular to Article 81, which deals with competition law.

“Without some legal basis to act,” she said, “we will not be able to design a proposal that meets the test for EU intervention and which also convinces member states.”

One crucial element, according to Jourová, “will be to ensure there are capacities in member states to assist victims of SLAPP cases, as all our discussions so far show a need to offer such immediate support.

“Judges will also play a crucial role. Even where procedural safeguards exist, it will be important to ensure the judiciary is fully aware of this phenomenon and of its characteristics, so they can dismiss unfounded cases early on so we don’t see SLAPP victims dragged along for years.”

The proposals, in fact, call for a system whereby judges would be able to take a priori decisions that would see blatantly vexatious lawsuits dismissed quickly at their outset.

“Such abusive litigation has a particular aim: to curtail free speech and to silence those who rightfully seek to expose the truth. No one in Europe should be afraid of doing their job of speaking up in the public interest – be they journalists or civil society advocates.”

Many SLAPPs ‘happen in silence’ - Matthew Caruana Galizia

Addressing the hearing, Matthew Caruana Galizia, on behalf of the Daphne Caruana Galizia Foundation, recalled how, growing up, he believed being continually sued was the norm for journalists, given the experience of his late mother Daphne Caruana Galizia who, before her assassination in 2017 had been a journalist for a good 30 years.

She left behind her some 40 libel cases, which were inherited by her family.

“I had seen the effect of many defamation suits against my mother which were intended to harass her over those years,” he told the hearing.

“As I was growing you I thought these kinds of lawsuits were a normal part of the harassment that journalists have to endure and that, if you wanted to be a journalist, this was the kind of thing you have to live with.  Let’s just say I thought it was the price you had to pay.

“It was only when I got to meet other journalists who were not subject to these kinds of lawsuits that it wasn’t normal and that it wasn’t something any journalist should have to endure.”

Following his mother’s assassination, the Foundation got together with other like-minded NGOs concerned about the abuse of SLAPPs.

“We realised there was a pattern across Europe of European companies, and of non-European companies, using courts in different jurisdictions around Europe, whichever jurisdiction was most convenient for them to sue journalists into silence.

Journalists are not exactly the highest-paid members of the European workforce, so to them, even the threat of a €5,000 or €10,000 lawsuit is enough to force most of them into silence, or to force their employers to give up the backing they would have previously given that journalist.”

Some SLAPPs are well documented, while others, perhaps more dangerously, fly under the radar and “happen in silence”.

“Very often, the journalists who are subjected to SLAPPs are so intimidated by the threat of defamation that they do not even speak up about the threat. So as a citizen, you wouldn’t notice that the truth is being distorted, that the media of your country is being blackmailed into silence, and that you are being robbed of your right to information. That is why I’m here to ask all those present to support an EU-wide anti-SLAPP directive, which is the most effective way to stop this kind of abuse.”