From slapstick to SLAPP

The way libel laws were applied in Malta for donkey’s years, has changed dramatically over the years.

We have come a long way from the time when a linesman won a libel case because a newspaper report on a football game claimed that a linesman had “waved an imaginary off-side.”

In giving judgement in libel cases, our Courts are now giving more importance to the public interest, and what was previously libellous started to become ‘frivolous’ or ‘normally acceptable in a democratic society’ – even though the law per se had not been changed!

This still ignores the more important issue of whether fining writers or newspapers for something that might have offended someone’s sensibilities was tantamount to breaching the writer’s or the newspaper’s fundamental right for freedom of expression.

Decisions by the European Court of Human Rights in Strasbourg have indicated that the Maltese Courts seem to be ignoring the importance of the Human Rights aspect of these cases, particularly the basic right for freedom of expression.

Criminal libel has now been removed from the Maltese statute book and the damages one can win from a civl case of libel in Malta are limited. Not so in the case of Courts abroad. The news that Daphne Caruana Galizia had been sued for defamation in Arizona by Pilatus Bank has sparked a wave of consternation among journalists. Arizona was chosen because that is the state where one finds the headquarters of a domain registering company - GoDaddy’s.

Such lawsuits have been made illegal in some jurisdictions on the grounds that they impede freedom of speech. As far as I could check, these jurisdictions do not include any EU states.

One cannot have a website without a domain registering it and GoDaddy’s register includes some seventeen million websites, including that of Caruana Galizia. This is the tenuous legal connection between Caruana Galizia’s blog and the state of Arizona, USA.

A number of local papers had already been forced to withdraw allegations against Pilatus Bank as they were threatened with law suits abroad – the owner of Pilatus Bank being a foreigner. Malta’s newspapers can ill afford to pay for damages on the scale that are awarded in foreign courts.

So the Opposition has conjured a proposal for a SLAPP law. SLAPP stands for Strategic Lawsuit Against Public Participation – a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defence until they abandon their criticism or opposition. Such lawsuits have been made illegal in some jurisdictions on the grounds that they impede freedom of speech. As far as I could check, these jurisdictions do not include any EU states.

The typical SLAPP plaintiff does not normally expect to win the lawsuit but the plaintiff’s goals are reached if the defendant succumbs to fear, intimidation, mounting legal costs, or simple exhaustion, and abandons the criticism. A SLAPP may also intimidate others from participating in the debate. As has happened in Malta, SLAPP is often preceded by a legal threat.

The Opposition’s proposal is a law that would prevent Maltese Courts from enforcing judgements made abroad and makes it imperative that proceedings against a publication must be made locally and through local Courts irrespective of where a website is hosted.

Whether such a law fits in with our committment to our own Constitution and to European values and international obligations is still to be seen.

That is Minister Owen Bonnici’s job, of course.

Goodbye presumed innocence

Wriring recently in The Times, Arthur Muscat, Vice-President of the Malta Employers’ Association (MEA) asserted that employers are worried that ‘extremist members of gay and feminist lobby groups’ are pressing for laws that would ignore the principle of presumed innocence until one is found guilty.

Two Bills that were published before the July 2017 election, and are to be presented again, deal with equality and propose the setting up of a human rights and equality commission.

The MEA is dead set against certain provisions of the Bills, not only from a legal point of view, but more so because the proposals ‘appear to consider employers as prevalently and constantly inclined to exploit, discriminate against and harass employees.’ Of course, such an attitude is condemnable and should not go unpunished; but moving the goalposts by placing someone accused of such behaviour in a situation where the individual has to prove that the charge is unjustified is not on.

Minister Helena Dalli has been the veritable champion of LGBTQ (Lesbian, Gay, Bisexual, Transgender, Queer/Questioning) pressure groups, introducing same sex marriage and what not. Personally I agree that the time had come where discrimination against minorities in one form or another should no longer be permitted.

However, Minister Dalli’s consultants are members of the LGBTQ community who probably have indeed suffered discrimination because of their sexual or gender orientation. That makes them emotionally involved in these issues, pushing for legislation that goes over the top while using language that could bother others unduly. Minister Dalli keeps plodding on while her ‘consultants’ keep wanting more - ‘l’appetito vien mangiando’, as the Italians put it.

The proposed laws set up a Commission that can fine employers up to €5,000 and condemn them up to six months imprisonment.   I have no doubt that the proposed Commission will be loaded with the same people who are Minister Dalli’s consultants – well-meaning people whose emotional involvement in such issues, however,  makes them unfit to judge others accused of discrimination.    

Ditching the principle that the accused are presumed innocent until they are proven guilty is a dangerous ‘modus operandi’ and can be too easily abused. We have already ditched this important legal principle in the case of money laundering, where the stakes are very high and many hold that without the obligation of the accused to prove that the money came from a clean source, it would make it practically impossible for money laundering to be checked.

But accepting to ditch this principle in cases of presumed sexual and gender discrimination is going too far: it impinges seriously on citizen’s rights more than it benefits the common good.