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Anti-SLAPP lacks will, not way

SLAPP (strategic lawsuit against public participation), like Damocles’ sword, still hangs over the heads of Maltese media houses, even over ordinary people who dare to express an opinion on Facebook. Anyone who files a SLAPP defamation suit is not interested in winning but in intimidating and silencing critics. This is why such cases are not filed in Malta but in jurisdictions where even the cost of mounting a defence is far beyond the reach of anyone who is not a multi-millionaire.

This abuse of the legal system and its resultant chilling effect are undermining freedom of speech in our country. The English language news outlets, this one included, were unceremoniously threatened by the notorious Pilatus Bank with potential expenses that would have bankrupted them. Pilatus filed against Daphne Caruana Galizia in a US court while Henley and Partners threatened her with similar action.

Why is the government so adamant on keeping alive the prospect of this sort of threat? The answer obviously lies in the fact that it granted Henley and Partners the green light to threaten Caruana Galizia with a SLAPP action. Such connivance undermines its credibility when it says that it wants to defend journalists from such action.

According to the Attorney General, the PN Bill ran contrary to EU law. But the government’s legal advisers should have known that with some tweaking it could have been made fully compliant. Members of the European Commission have now confirmed that the government was wrong, and that under EU law it is completely possible for Malta to introduce anti-SLAPP legislation against judgments from courts both within and outside the EU.

Legal advice given to this paper holds that it is quite possible to enact legislation in line with Brussels II regulation, meaning that all judgments by EU courts must be enforced except where there are public policy grounds not to do so. Since protecting freedom of speech is a public policy ground, Malta can therefore create an anti-SLAPP exception in line with and subject to the European Court of Justice’s case law on public policy exceptions and on the principle of proportionality. The government’s foreign experts and the AG can surely come up with a Bill fully compliant with the decisions of the ECJ.

Another legal perspective is that local legislation is already sufficient to protect against SLAPP. Our laws state that if foreign judgments “contain any disposition contrary to public policy or to the internal public law of Malta” (Art 827(1)(C) of the Code of Organisation and Civil Procedure) they are not enforceable. Many aspects of SLAPP litigation and judgments are in express violation of the very basics of human rights and freedom of expression – core public policy tenets – and as such should not be enforceable in Malta.

Moreover, sentences of the European Court of Human Rights show that disproportionate damages for defamation violate freedom of expression while heavy litigation costs incurred by defendants to actively and meaningfully defend themselves in foreign SLAPP litigation may constitute a violation of the “right of access to a court”.

This legal avenue would probably work – so long as the judiciary pulls its weight. However, history does not augur well in this regard, as Giovanni Bonello’s series of articles in this newspaper on ‘Misunderstanding the Constitution’ has so effectively documented. Better to legislate against SLAPP action to dispel all fears.

There is a way. It is perfectly feasible, as the European Commission has made clear, for the government to erect a sturdy legal wall to protect Maltese journalists and citizens against any future SLAPP action. It would be a natural follow-up to the improved media laws. What’s lacking, evidently, is the will.

This is a Times of Malta print editorial

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