Updated 2 | Refusal of foreign defamation claims only possible under ‘restricted exception of public policy’

Commissioner Vera Jourová has told MEP David Casa that national laws can oppose SLAPPs in the absence of European law • Government insists that reply confirmed its interpretation of the Opposition's proposal

EU Justice Commissioner Vera Jourova
EU Justice Commissioner Vera Jourova

Updated at 7:20pm with government statement

The European Commission has Malta is free to introduce national laws to protect the press against SLAPPs (strategic lawsuits against public participation) in the absence of EU laws, but any restriction on the basis of public policy has to be restrictive.

Commissioner Vera Jourová was answering a parliamentary question by Nationalist MEP David Casa on the matter.

The Maltese government said it was unable to prevent Maltese courts from enforcing claims brought against Maltese publishers in member states courts under EU law. But activists from the Front Against Censorship say Maltese courts can limit the damaging effect of SLAPPs from foreign courts.

“In the absence of Union competence to harmonise defamation laws and to address SLAPP cases, member states are free to introduce any such legislation at national level.

“As long as these initiatives regulate the jurisdiction of the national courts in matters of cross-border civil and commercial matters, including defamation, as well as the recognition and enforcement of decisions from other member states, they must be in conformity with EU laws, namely Regulation 1215/2012 and Regulation 805/2004,” Jourova said.

READ MORE • SLAPP lawsuits from the US? Don’t open the lawyer’s letter…

Regulation 1215/2012 forces the courts of EU member states to recognise decisions handed down by other member states courts, but offers the possibility that its execution be refused on the basis that it goes against public policy.

“However, according to case history by the European Court of Justice, the exception to public policy has to be interpreted in a restrictive manner. Regulation 805/2004 can only apply to claims that have not been contested, that is, after fair notification was not opposed by the defendant,” Jourova said.

However, the Commissioner's reply was taken by both Casa and justice minister Owen Bonnici as a confirmation of their respective positions.

“European Commission confirms that the position adopted by the Maltese government on anti-SLAPP proposal was legally correct," tweeted Bonnici, attaching a copy of the reply by Jourová. In parliament, Bonnici said Jourova’s response “was exactly what we’ve been saying from the beginning... it confirms 100% the advice given by the attorney general Peter Grech, Paul Cachia, and others.”

Bonnici said Malta would back an EU-wide anti-SLAPP directive but that it had to obey EU regulations and cannot intervene unilaterally as a country. In a reply PQ from Nationalist MP Jason Azzopardi, Bonnici said Malta was unable to go against a court decision handed down by an EU member state court.

On his part, Casa said it was clear that there was nothing in EU law that precluded the introduction of measures protecting journalists. “The position of the European Commission contrasts with that of the Maltese government that rejected an anti-SLAPP amendment proposed by PN MP Jason Azzopardi to the new media bill on the basis of incompatibility with EU law,” Casa said.

“The abysmal reasoning provided by Minister Owen Bonnici to justify the decision not legislate to protect Maltese journalists must be understood in the context of his complicity to silence Daphne Caruana Galizia through SLAPP. Today, the Commission has effectively rubbished the position taken by the Maltese government,” Casa said.

On his part, Nationalist MP Jason Azzopardi said Bonnici should immediately propose his amendment in parliament and “give journalists the peace of mind to conduct their work that they deserve.”

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. “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.”

Government reaction

In a statement issued on Wednesday evening the justice ministry said that Jourová's response confirmed the legal position of the Maltese Government that "judgments delivered from a court of another EU member state on the basis of jurisdictional reasons according to Regulation 1215/2012 are to be recognised and enforced in the requested member state".

Furthermore, it said the reply highlighted that any initiative undertaken by a member state to regulate the jurisdiction of national courts must be in accordance with Regulation 1215/2012.

"The government points out that the Opposition's proposal would change the rules of Regulation 1215/2012 on jurisdictional defamation lawsuits and is therefore not permissible as confirmed by the European Commission," the government said.

Furthermore, it noted that the Commission stated that the regulation provides for a possibility to refuse recognition of the enforcement of a judgment on the grounds that it would be manifestly contrary to public order but that according to European Court of Justice case law, the public order exception is interpreted restrictively.

"The Government also notes that the European Commission confirmed that there is lack of competence within the Union to harmonise laws on defamation and to address SLAPP lawsuits and at the same time that, 'Member states are free to introduce such legislation at national level', In fact, the Maltese Government, in its new law on Media Defamation introduced new provisions that prevent SLAPP lawsuits initiated in Malta against local journalists," the government said.

The Commission, it said, added that enforcement of judgments from other member states must be recognised and enforced in conformity with the relevant EU law.

"The above are all loyal and fair translations of quotes taken directly from Commissioner Jourová’s reply whilst the statement released by David Casa is merely a political spin to cover up the weakness of the Opposition’s reasoning. The Government notes that with regards to judgments born of lawsuits opened in jurisdictions outside the European Union, our law already provides journalists awith protection if these journalists choose not to participate in these cases."

 

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