The recent case of Economy Minister Chris Cardona suing out a garnishee order against blogger Daphne Caruana Galizia raises pertinent legal considerations related to media freedom.

First, can the institute of civil procedure be used to gag the media? The answer is in the positive. Apart from garnishee orders, civil procedure precautionary acts comprise a warrant of seizure and a warrant of prohibitory injunction.

Although all these three warrants are effective in their application in civil procedure litigation, even against the media, the garnishee order and the warrant of seizure are more addressed at the assets of a journalist – whether freelance or employed – or at a media house.

The warrant of prohibitory injunction is nevertheless more pernicious than the other two as it strikes at the very heart of free expression – it is purely and simply a gagging order, nothing but the antithesis of press liberty.

Second, a garnishee order and a warrant of seizure, though indirectly striking at free expression, directly strike the journalist’s or media house’s pocket. In both instances a situation may arise where both a journalist and a media house run out of pocket depending upon the number of garnishee orders sued out against them.

It is not uncommon in Malta for the whole parliamentary group or cabinet to consider itself irritated by some publication to such extent as to institute libel proceedings against a journalist or a media house, more so that election date is approaching and a red bulb lights to politicians requesting them to ensure preservation of reputation and defence of honour.

The Muscat Cabinet today boasts 17 ministers and, as though that was not enough, there are a further six parliamentary secretaries to (over) administer the Lilliputian state of Malta.

Suppose all 23 government front bench members institute a garnishee order against a journalist whom they claim has libelled them, that journalist ends up having his/her assets frozen to the tune of €11,646.87 x 23 = €267,878.01c (where €11,646.87 is the maximum amount of damages which a court of civil jurisdiction can inflict for defamatory libel).

This type of behaviour constitutes an overkill in a democratic society and is utterly unjustifiable

Yet, this is only in relation to one case for during election time libel cases multiply exponentially by the dozen. The chilling effect that a garnishee order may procure on the press is not only extraordinary but even devastating – it cannot only gag the press but run it out of business or even ensure loss of livelihood for journalists.

If exercised in this way, it also constitutes a serious disincentive for students studying media and communications to take up the journalistic profession.

The amount of havoc such precautionary acts bring about to the journalistic profession, were they to be exercised more widely, would be tremendous. Free speech would be no longer free but a relic of the past. We would celebrate George Orwell’s 1984 perennially!

Although Maltese law does provide journalists certain safeguards to carry out their lawful fourth estate duties of watchdogs of society, such as when it does not allow their arrest under the Criminal Code (though not under all criminal legislation) or when it decrees in the Press Act that they cannot be imprisoned if found guilty of criminal libel, we are still far away as a society from ensuring that journalists are allowed to carry on their duties with the serenity they deserve.

We have had cases in the past where journalists and cameramen were attacked and/or injured or where their cameras were damaged when they were reporting lawful activities or investigating stories.

We read every now and then that they are not granted by the public administration access to information either because that information is held to be of a commercial nature – even if the money in question is disbursed from government coffers and the public has a right to know how their money is spent – or falls under one of the incessantly endless exceptions in the Freedom of Information Act which conveniently enough for the public administration bars its disclosure.

At times these exceptions are purposely inflated in order to cover all requests made by the media under the Freedom of Information Act. Yet, the public administration fails to recognise that the information it holds is on the basis of trust and belongs not only to it but to the people who pay for its running.

The conclusion, inevitable as it might seem, is that if the government elects to resort to the full rigour of the law of civil procedure, then it can harass, cripple, intimidate and eventually shut up the press.

But is this really what we are all after? This type of behaviour constitutes an overkill in a democratic society and is utterly unjustifiable.

The chilling effect which it produces is such that it is disproportionate and there is no pressing social need to retain on the statute book such obnoxious measures which are in disaccord with press freedom.

It is therefore good to learn that both the Opposition and the government have drawn up separate Bills to do away with recourse to precautionary garnishee orders against the press.

At least, this will put the mind of journalists at rest that when they are doing their duty they are not harassed by such disproportionate measures.

However, although this is a step in the right direction more needs to be done and, although the government’s Bill does make some improvements in this respect, it does not go the whole hog to ensure that journalists enjoy full freedom of the press.

Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta.