Maltese solution to SLAPP lawsuits 'needed and legally possible'

A Maltese solution to protects against strategic lawsuits against public participation (SLAPP) and ‘libel tourism’ is both “needed and legally possible” in Malta, the Malta Information Technology Law Association has said, but it requires a reassessment of the fundamental right to freedom of expression within the digital world of today.

In a press release, MITLA maintain that they have been following the discussion on SLAPP - which are lawsuits meant to censor, intimidate, and silence critics by burdening them with the cost of a legal defence until they abandon their criticism - and have noted the presentation of an anti-SLAPP Private Member’s Bill by the Nationalist Party.

“A Maltese solution should recognise that freedom of speech is a fundamental human right enshrined in Article 41 of the Constitution of Malta and other applicable international treaties and conventions, and the protection of such right is necessary both offline and online,” MITLA asserted.

The Association noted that that the filing, or threat thereof, of foreign defamation lawsuits had a “chilling effect on the right to freedom of expression and attacks the right of the Maltese public to receive information on matters of public importance.”

SLAPP was a something of public concern, it said, and should thus be a matter of Maltese public policy.

However, it remarked, there were no harmonised laws at a European, US federal or international level regarding SLAPP.

It explained that the biggest threat facing Malta in this respect is SLAPP originating from foreign jurisdictions, embodied in ‘libel tourism’, which is a way of forum shopping for libel suits.

MITLA said that any Maltese approach to this should be built on the same philosophy used by the US when it came to liberal tourism, namely the 2010 US “Securing the Protection of our Enduring and Established Constitutional Heritage Act”, which prohibits the recognition and enforcement of foreign defamation.

Malta should use this US way of thinking in “ensuring that our constitutional provisions vis-à-vis freedom of speech are applied and shield Maltese persons from threats emanating or arising from situations of SLAPP and, most importantly, libel tourism. This should be a matter of public policy and there should be no doubt that the Maltese Constitution is the crystallisation of the public policy of our nation”, MITLA said.

Based on the SPEECH Act principles, MITLA suggests that Maltese legislation should introduce a two-part test. 

The first part of the test would be “that no Maltese court should recognise a foreign defamation judgment unless the Maltese court determines that the defamation law applied in the foreign jurisdiction provided at least as much protection to freedom of speech as would be provided under the Maltese Constitution and other international conventions and treaties to which Malta is a party."

The second part would see to it that "even if the defamation law applied in the foreign defamation judgement did not provide as much protection as our Constitutional right to freedom of speech, the party opposing enforcement in Malta would have been found liable for defamation by a court in Malta through the application of Maltese law and rights.”

Moreover, the Association said that any Maltese person against whom a foreign defamation judgement is entered should have the right under Maltese law to bring an action in front of Malta’s court to ask that the judgement  be considered contrary to that person’s rights as enshrined in our Constitution.

A workshop will be organised in the next weeks to discuss the current local scenario surrounding SLAPP and related issues, MITLA said.