Differing opinions on viability of anti-SLAPP Bill

Last month, the Nationalist Party presented an anti-SLAPP Bill that seeks to protect local publishers against the threat of libel tourism and strategic lawsuits against public participation (SLAPP), which are intended to force them into submission.

Libel tourism involves individuals filing lawsuits in a specific jurisdiction to take advantage of its legal system with a view to achieving a more favourable judgment – for instance where higher penalties are imposed.

Last year, the government proposed new press laws which, while reducing the opportunities for SLAPP lawsuits in Maltese courts, do little to stop libel tourism.

The recent revelation that Pilatus Bank had instituted defamation proceedings against the late journalist Daphne Caruana Galizia in Arizona, as well as threats made by the bank and by citizenship experts Henley and Partners, to other local media houses have brought the threat to the public’s attention.

What is being proposed?

The PN’s Bill seeks to counter this threat by making it a matter of internal public policy that judgments for defamation handed down by foreign courts, in cases where the defendant has not tried to defend himself, can’t be enforced in Malta.

The internal public policy of a country refers to principles underpinning the country’s legal system, and comes into play when considering relationships between different individuals or entities across different jurisdictions, where legal principles may differ.

For example, the courts can’t enforce a judgment by a foreign court granting the right to an abortion, because it goes against internal public policy.

Public policy has been invoked in the past. In 2007, the courts refused to enforce a French judgment against a betting company based in Malta on the grounds that it posed a threat the local industry.

The Bill also seeks to change the definition of publisher in the Press Act to include that, as a matter of public policy, any proceedings against a local publication must be brought against it in the Maltese courts.

Maltese solution to libel tourism necessary

Antonio Ghio, a lecturer in Information Policy and Governance at the University of Malta, told MaltaToday that he agreed that foreign defamation judgments between two Maltese parties should not be enforceable as a matter of public policy.

Ghio pointed out that in the United States, the “SPEECH Act”, which was passed in 2010, prohibits the recognition and enforcement of foreign defamation judgments.

He said it was ironic that Pilatus bank had gone to the US to obtain a judgment against Caruana Galizia, when the US itself was a defender of free speech, and through this law would not have allowed a foreign judgment to be enforced in the US.

Moreover, he stressed that the country also needed to engage in a broader debate on freedom of expression.

“We are simply reacting to these lawsuits but first of all we must establish what freedom of speech means for us,” said Ghio, who is also the president of the Malta IT Law Association (MITLA).

“When I first pronounced myself on SLAPP, I said we should potentially explore having a constitutionally given right, like we have a right to life under the constitution, which prevents us from extraditing individuals to countries that have the death penalty.”

He explained that while freedom of expression was enshrined in the Maltese Constitution, there wasn’t enough case law clearly defining what is meant by it.

Ghio suggested that Maltese laws could require the courts to enact a foreign judgment only when the jurisdiction it was handed down in provided at least as much protection of free speech as the Maltese Constitution, and if the defendant would still have been found liable under Maltese law, including jurisdiction issues.

Public policy best left undefined

Lawyer Andrew Sciberras, however, disagreed with going down the public policy route. He said that while generally used for the protection of an overriding public interest, it “is not and cannot be subject to an exhaustive list or definition and interpretations”.

He said that in his view, such a term was best left undefined and that he was “confident that [the] courts are not only capable, but best placed, to ensure the protection of public policy in the judicial context”.

Sciberras expressed doubts as to whether it made sense to specify, in the law, what should constitute public policy.

According to Sciberras, if a foreign judgment were handed down, that ordered a local publisher to pay hundreds of thousands of Euro in damages, it would be “common sense to say that such an award will have the obvious consequence of shutting down that publisher for good”.

“The chilling effect on freedom of speech and the gradual destruction of our media – the fourth pillar – is, I think, self-evident,” said Sciberras.

“It stands to reason, then, that such an award would be against our public policy. However, one must always bear in mind that free speech is not an absolute right and does admit exceptions. Again, it is all case by case.”

Turning to the Bill’s wording, Sciberras explained the Bill seemed to ignore the principle of “unifying rules of conflict of jurisdiction on commercial matters”, but he added that on a EU level, this did not matter since “the Code of Procedure is inapplicable to matters which are already considered under European Union Regulations”.

As regards non-EU countries, such as the US, Sciberras said that in the absence of bilateral treaties, private international law rules, customs and conventions would have be considered on a case-by-case basis.