Malta’s anti-SLAPP law sitting on government’s lap is in line with EU directive

The European Union has a new directive to protect persons who engage in public participation from manifestly unfounded or abusive court proceedings.

Member states now have two years to transpose the EU directive that received the seal of approval last month.

The movement to have EU-wide anti-SLAPP provisions took on particular importance in the wake of Daphne Caruana Galizia’s murder in 2017. At the time of her assassination, the journalist faced more than 40 libel cases, including a freezing order on her accounts requested by then minister Chris Cardona pending the outcome of a libel case he had filed against her.

Better known by the acronym SLAPP (strategic lawsuits against public participation), these court proceedings are intended to harass and intimidate those involved in protecting the public interest.

The court action is typically initiated by powerful individuals, lobby groups, corporations and state organs against journalists, human rights defenders and anti-corruption campaigners.

Member states must now find ways and means of changing their laws to ensure the provisions outlined in the directive become applicable for domestic SLAPP cases and also cross-border ones.

The Maltese government had proposed anti-SLAPP legislation in the wake of the Daphne Caruana Galizia public inquiry findings, however this was shot down as weak and ineffective by journalists and campaigners.

A Media Experts Committee had reworked the government proposal in 2022 but this also came under fire. Subsequently, the Media Experts Committee revisited the legislation following public consultation and submitted its final report in July last year.

The new anti-SLAPP provisions proposed by the committee have been sitting on government’s lap since then. They are broadly in line with the EU directive and in some parts, go even further.

Government said last year it would be issuing a White Paper on the media reform proposed by the Media Experts Committee, which includes the anti-SLAPP provisions. Yet, the White Paper has still not seen the light of day.

We analysed the key elements that underpin the EU’s anti-SLAPP directive and the proposals made by the Media Experts Committee in its final report.

The Maltese anti-SLAPP proposal is included as part of the Media and Defamation Act and it covers both domestic SLAPP cases and those instituted in foreign jurisdictions against people or bodies in Malta.

The EU directive speaks of protection from “any type of legal claim or action of a civil or commercial nature”. The Maltese proposal makes such a wide provision when dealing with cross-border SLAPP cases but limits the protection to defamation and libel for domestic cases. The latter provision takes into account the Maltese context, where anyone who publishes or pronounces an allegedly libellous or defamatory article or statement can be sued for damages under the provisions of the Media and Defamation Act.

On most other points, the Maltese proposal is broadly in line with the directive’s requirements and it even goes further in some instances.

It has to be noted that proposed legislation currently frozen in the Maltese parliament falls short on several key aspects when compared to the anti-SLAPP directive. The draft legislation had been put forward in 2022 following the publication of the Media Experts Committee first report.

The proposal being analysed here is the one contained in the final report presented by the committee last year. The report was tabled in parliament in October.

The Media Experts Committee headed by retired judge Michael Mallia (first on left) presented its final report to Prime Minister Robert Abela and Justice Minister Jonathan Attard in July 2023. The report contains wide-ranging reforms to protect journalists, including anti-SLAPP provisions that are broadly in line with the EU directive

How does the anti-SLAPP proposal put forward by the Media Experts Committee in 2023 compare to the EU directive?

1. If claimants alter proceedings

EU: Any changes made by claimants during proceedings, including the discontinuation of proceedings should not affect the court’s possibility to consider the proceedings abusive and to impose remedies.

Malta: This aspect of the directive is not specifically covered in the new proposals put forward by the Media Experts Committee. However, Maltese jurisprudence shows that the party withdrawing the lawsuit is held responsible for the judicial fees and costs of the opposing party unless there is a written compromise agreement between the parties stating otherwise.

It must be noted though that the Maltese proposal does allow the court on ‘its own motion’ and ‘at any stage of proceedings’, to stop hearing the case if it is satisfied the action being brought against the defendant is ‘manifestly unfounded’. This will result in the court taking a decision on costs, damages and possibly penalties.

2. Third party intervention

EU: Courts may accept that non-governmental organisations safeguarding or promoting the rights of persons engaging in public participation may take part in those proceedings, either in support of the defendant or to provide information.

Malta: This aspect of the directive is not specifically covered in the anti-SLAPP proposal put forward by the Media Experts Committee. However, Malta’s Code of Organisation and Civil Procedure (Article 960) allows for the intervention of an interested party in a lawsuit if that party can prove its interest to the court’s satisfaction.  Admission to the case shall not suspend proceedings.

3. Security for procedural costs

EU: The courts will have the power to require the claimant to provide security for procedural costs, or for procedural costs and damages, if it considers such security appropriate because of elements indicating the action could be abusive.

Malta: This aspect is not covered in the new proposals put forward by the Media Experts Committee. Malta’s procedural laws require a party entering an appeal from a court decision to lodge security for costs, not damages. However, no similar provision exists at first instance. But the anti-SLAPP proposal does allow the court to declare that costs should be borne by the complainant and even award damages to the defendant, if the case is deemed abusive. The court could also penalise the complainant.

4. Early dismissal of case

EU: The courts should be empowered to adopt an early decision to dismiss, in full or in part, SLAPP proceedings if these are manifestly unfounded.

Malta: The Maltese proposal does allow the court to dismiss at a preliminary hearing, a case if it is deemed to be manifestly unfounded. The court can make such a decision after it is petitioned by the defendant or on its own motion. But the proposal also goes one step further than the EU directive since a decision as to whether a case is abusive can also be taken at any stage of the proceedings. The proposal made by the Media Experts Committee makes no mention as to whether a case can be dismissed in full or in part.

5. Set time limits

EU: The law should set time limits for the exercise of the right to file an application for early dismissal. The time limit shall be proportionate and not render such exercise impossible or excessively difficult.

Malta: The Maltese proposal sets no time limits within which the right to file an application for early dismissal can be made. Indeed, it can be superfluous since the court on its own motion can at any stage dismiss proceedings if it deems they are abusive.

6. Stay of main proceedings

EU: If the defendant applies for early dismissal, the main proceedings are stayed until a final decision (on appeal) on that application is taken.

Malta: This is already catered for in Maltese jurisprudence, where a court would refrain from continuing proceedings on the merits of a case until a final decision is taken on an appeal filed by any one of the parties.

7. Accelerated procedure

EU: An application for early dismissal should be treated in an accelerated procedure, taking into account the circumstances of the case and the right to an effective remedy and the right to a fair trial.

Malta: There is no particular provision setting time frames or proposals for an accelerated procedure in the draft put forward by the Media Experts Committee. The EU directive does not set down any particular timeframe but as a general rule a court must always act expeditiously with respect to the fundamental right for a fair trial that speaks of justice being delivered in a “reasonable time”.

8. Burden of proof

EU: When the defendant applies for early dismissal, the burden of proof is shifted onto the claimant to prove that their claim is not manifestly unfounded.

Strategic law suits against public participation (SLAPP) are normally filed by powerful bodies and individuals against journalists, human rights campaigners, activists and academics who comment or report on issues of public interest with the intention of forcing these voices to shut up or give up. Very often they instituted in foreign jurisdictions in an attempt to cripple defendant with exorbitant legal and procedural costs.

Malta: The Media Experts Committee’s proposal takes this on board.

9. Right to appeal

EU: A decision to refuse or grant early dismissal should be subject to appeal.

Malta: The right to appeal a court’s decree is already part of Malta’s existing procedural laws and thus any decision in favour or against early dismissal by the court can be appealed.

10. Award of costs

EU: A claimant can be ordered to bear all the costs of the proceedings, including the full costs of legal representation incurred by the defendant, unless costs are excessive.

Malta: The Maltese proposal allows the court to order the claimant to pay all legal costs if the action is deemed to be manifestly unfounded. The proposal makes no qualification as to the amount of costs but Maltese law allows the defendant to recover judicial fees and costs as officially taxed by the Registrar of Courts.

11. Compensation of damages

EU: The law must ensure that a natural or legal person who has suffered harm as a result of abusive court proceedings against public participation is able to claim and obtain full compensation for that harm.

Malta: The Maltese proposal allows the court to award damages to the defendant. The court has discretion to determine the amount of damages.

12. Penalties

EU: The courts should have possibility to impose effective, proportionate and dissuasive penalties on the party who brought those proceedings deemed to be abusive.

Malta: The Maltese proposal allows the court, at its own discretion, to impose ‘dissuasive penalties’ on the claimant that are payable to the defendant. The proposal does not set amounts.

13. Protection against third country judgments

EU: A third-country judgment can be refused as manifestly contrary to public policy if those proceedings would have been considered manifestly unfounded or abusive if they had been brought before the courts of the Member State where recognition or enforcement is sought and those courts would have applied their own law.

Malta: The Media Experts Committee proposal empowers the domestic court to dismiss any application for the enforcement of a foreign judgment in Malta if this is considered to be manifestly unfounded and would have constituted abusive action had the case been filed in Malta. The dismissal will be possible because it is deemed to be contrary to public policy. The proposal does not only speak of libel proceedings but any civil case seeking damages.

The Maltese proposal also makes a special provision that allows the domestic court to dismiss a judgment obtained in a foreign jurisdiction if it deems that the execution will breach freedom of expression as protected in the Maltese legal system.

The Media Experts Committee also included a clause stating that in its deliberations to dismiss a foreign judgment, the domestic court should make no negative inference if the defendant had absented themselves from proceedings in the foreign court.

14. Compensation from foreign judgments

EU: The defendant may seek compensation of damages and costs in the domestic court for cases initiated in a foreign jurisdiction but which would have been written off as abusive.

Malta: The Maltese proposal allows the domestic court to condemn the claimant to pay damages to the defendant and all legal costs. The court will also, at its own discretion, impose a dissuasive penalty on the claimant, which will be paid to the defendant.

The author was a member of the Media Experts Committee. The views expressed in this article are his own. This article focusses only on the anti-SLAPP provisions of the proposed reform, which includes many other provisions intended to protect journalists and campaigners in the exercise of freedom of expression.