Malta can refuse Steward SLAPP: EU Court opinion in Real Madrid defamation

Updated on 29 February with Steward Health Care comment

Malta can refuse the enforcement of SLAPP lawsuits that demand exorbitant damages to be paid out when these are decided by other courts in European Union member states.

In a case that mirrors the SLAPP lawsuit filed against MaltaToday by hospital privateers Steward Healthcare in a Spanish Court, the latest opinion from the Advocate General of the European Court of Justice, shows that enforcing onerous court damages ordered by foreign courts, should be refused.

According to the Advocate General, an order to pay damages the amount of which is “manifestly unreasonable” has a deterrent effect that affects both journalistic freedom and freedom of information.

The opinion was declared in the case brought to the EU Court by the Real Madrid football club against a decision by the French Court of Cassation not to enforce a Spanish court ruling for damages to be paid by the Le Monde publisher.

Almost 10 years ago, the newspaper Le Monde and one of its journalists were ordered in Spain to pay a penalty for the publication, in 2006, of an article claiming that there were links between the football club Real Madrid and Dr Eufemiano Fuentes, the head of a doping ring in the cycling world.

Ruling that the article was defamatory and harmed the club’s reputation, the Spanish courts ordered the newspaper company Société Éditrice du Monde to pay a fine of €390,000 and the company and its journalist, jointly and severally, to pay a fine of €33,000.

In a similar case, Steward – whose multi-million deal in Malta was rescinded by a Maltese judge – has filed a damaging lawsuit against MaltaToday and journalist Matthew Vella, in Spain, alleging defamation from a report on allegations made by short sellers Viceroy, and demanding €25,000 in damages from the newspaper apart from financing the court decision’s announcement in the Financial Times, Le Soir, and the Wall Street Journal.

The prohibitive costs of any lawsuit in a foreign court, made in the wake of  Steward Healthcare’s call to the Maltese government to have Vella himself investigated over his report back in February 2023, amount to a SLAPP action (strategic lawsuit against public participation).

Real Madrid vs Le Monde

The Le Monde article at the centre of the Real Madrid case

Real Madrid applied for enforcement of those Spanish judgments in France but, in 2020, the Paris Court of Appeal dismissed its application, having recourse to the public policy clause: according to that court, being ordered to pay that penalty has a deterrent effect on the involvement of journalists and media organisations in the public discussion of matters of community interest, thereby breaching freedom of the press and freedom of expression.

Hearing the case, the French Court of Cassation then asked the European Court of Justice whether, the freedom of the press guaranteed by the Charter of Fundamental Rights of the European Union constitutes a fundamental principle the breach of which can justify recourse to the public policy clause.

Against public policy

In his Opinion, First Advocate General Maciej Szpunar considers that a member state in which enforcement of a judgment is sought, must refuse or revoke enforcement where it would give rise to a manifest breach of freedom of expression.

The Advocate General also said the risk of a deterrent effect going beyond the situation of the person directly concerned, justifies refusal of enforcement because this would be a manifest and disproportionate breach of freedom of the press in the member state.

In this sense, the overall sum that a natural person is required to pay must be considered “manifestly unreasonable where that person would have to struggle for years to pay it in full or where that sum is several dozen times the standard minimum salary in the member state concerned.”

The Advocate General also said that the amount of damages which media companies are ordered to pay “must not be such as to threaten their economic foundations”.

“Given its importance in a democratic society and a State governed by the rule of law, freedom of the press is an essential principle of the EU legal order the manifest breach of which may constitute a ground for refusal of enforcement. Recourse may be had to public policy only in exceptional cases. That is the case where a party has been ordered to pay compensatory damages and enforcement of the judgment is likely to have a deterrent effect on the exercise of that freedom in the Member State concerned.”

Letter to Malta PM

Steward Healthcare is suing MaltaToday in Spain

Following Steward’s SLAPP action, Mediatoday managing director Saviour Balzan and MaltaToday Executive Editor Kurt Sansone wrote to the Prime Minister of Malta, alerting the government of the case against the media organisation.

“This is a serious matter that undermines our right to exercise free journalism,” they wrote in their letter.

“In light of the proposals made by the Committee of Media Experts last year, and other requests made to the government by the Institute of Maltese Journalists and other Maltese and international organisations for the introduction of an anti-SLAPP law, it is now opportune that the Maltese government kick-starts this process as soon as possible to ensure the Maltese media and journalists have legal protection from SLAPP cases,” the letter reads.

Sansone said the action instituted by Steward in Spain not only threatened the journalist’s right to freedom of expression but risked stifling public participation in a debate of national interest. “We stand four-square behind Matthew Vella, who was only exercising his right to bring to the public’s attention a matter that was pertinent to the ongoing controversy in Malta.”

Right of reply: Steward Health Care International

"Steward Health Care International (SHCI) wants to clarify the merits of the facts and arguments made.

This is in no way a credible or comparable scenario. Our case against MaltaToday is not a SLAPP. Steward International brought the case with honest intentions and, despite making journalists aware of the truth of the matter, these wholly inaccurate allegations continue to surface.

This is simply a violation of basic journalistic duty and principles and therefore subject to our defence in court."