Front proposes ‘buffer’ law that can protect Maltese press from SLAPP actions

The Front Against Censorship has proposed an amendment to Malta’s newly-launched Media and Defamation Act that would protect Maltese newspapers from so called SLAPP actions in foreign courts.

A SLAPP is a ‘strategic lawsuit against public participation’ intended at dissuading journalists from pursuing stories through expensive and damaging legal actions in foreign courts.

 “The amendment is not a complicated one, as it is based on a concept already entered in the new law,” activist Mark Camilleri said, explaining that the maximum amount in damages – €11,640 – reflected the economic situation of the Maltese press. “This means that €11,640 is regarded as a significant deterrent for publishing defamatory material, in excess of which press freedom would be curtailed,” the Front said.

“The Front believes the present conundrum can only be ultimately resolved through an EU-wide directive,” the Front – activists Ingram Bondin and Mark Camilleri, together with lawyer Andrew Sciberras – said.

The Maltese government has said it would be unable to prevent a Maltese court from upholding a request for damages from a defamation case if this is handed down by a court in an EU member state.

But they said that an amendment to the MADA can offer a buffer for the Maltese press which would still be compliant with the Brussels I Regulation that requests European courts to uphold decisions on matters of tort.

“The Front is proposing that the Maltese courts give due consideration to a number of aspects prior to deciding whether to enforce a decision given by a foreign court,” the Front said.

The amendments guide the Maltese courts to consider whether the defendant was accorded equal rights in the foreign court, whether the damages imposed by the foreign court would result in the financial ruin of the newspaper or compromise its ability to operate, and whether the judgment is likely to impede the newspaper's journalistic freedoms or freedom of expression.

“If newspapers have economic problems, they would close down and we wouldn't have any newspapers in Malta,” Mark Camilleri said.

Bondin derided the Opposition’s own proposed amendments as “sloppy work” since they ran counter to the Brussels I Regulation by “denying the jurisdiction of Courts located in other EU Member states when the defendant of a defamation case was resident or domiciled in Malta.

“The resulting use of the public policy exception found in the Brussels I Regulation would have risked the law being struck down by the ECJ or in infringement procedures being imposed against Malta.”

Malta’s Code of Civil Procedure says that the Maltese government can determine when claims for tort handed down by another European court run counter to Maltese public policy.

“This would mean that the jurisdiction of foreign courts would not be ruled out a priori, and that the judgments given by foreign courts could still be applied in Malta, as long as they were not in violation of the rights granted above,” the Front said.

“The continued existence of a free press is a public good which needs to be protected. These amendments will provide a buffer against financially ruinous judgments given by foreign Courts which do not respect the economic realities of the local press, whilst simultaneously complying with EU regulations. It is our expectation that this will allow the local press to continue to fulfill its essential function until an EU Directive hindering SLAPP lawsuits has been introduced.”

The Front has already been active in proposing important amendments to the recast media law, which was recently enacted into law.

SLAPPs – strategic lawsuits against public participation, often brought by companies or government officials and entities, seek to silence and intimidate critics by claiming injuries such as defamation or interference with economic advantage, often used as an exercise of damage-control to divert public attention from the issue. The legal costs of such a lawsuit work to dissuade journalists from carrying out their investigations and publishing information.

In February, Nationalist MP Jason Azzopardi who tabled anti-SLAPP proposals in the form of an amendment to the Media and Defamation Bill in the last minute.

“He would have done a much better job if he read the new press bill which actually may provide the solution for SLAPP through a new concept we have introduced in the bill – it just needs further work and re-writing,” Camilleri wrote in a Facebook post on Sunday.

MaltaToday was threatened by a business director named by the Daphne Project in connection to Azerbaijani oligarchs who held Pilatus Bank accounts, with legal action in the UK unless it takes down an article on the companies he is a director of.

MaltaToday had listed 18 companies the director, Robert Baker, is involved in – nine of which used a Pilatus company bank account – and one of which is a French company whose beneficial owners are Tale and Nijat Heydarov, sons of the powerful Azerbaijani minister Kamaladdin Heydarov.

The threat came from a British law firm Mischon de Reya, the same London firm used by IIP concessionaires Henley & Partners in connection with reports posted by Daphne Caruana Galizia.

MaltaToday has, in the past, been threatened with UK court action by a Lebanese energy giant, a British biotech entrepreneur, and more recently a UK asset company with interests in football and shipping.

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