Government should support Opposition’s amendments to anti-SLAPP law

Parliament will on Wednesday afternoon discuss amendments proposed by the Opposition to the legal notice that transposed the EU directive intended to combat SLAPP cases. 

The government had introduced the legal notice last year, shortly after the EU directive providing for minimum standards was approved. 

The law now in force allows the Maltese law courts to dismiss a law suit with cross-border implications, or the enforcement of a judgment from a foreign court, if the case is intended to stifle journalism and activism, better known as strategic lawsuits against public participation (SLAPP). 

The Nationalist Opposition is now proposing two key changes aimed at strengthening further the anti-SLAPP regime: The first proposal is for the legal notice to also apply to domestic cases, and the second is to increase the dissuasive penalties the court can impose on the party initiating the SLAPP case or seeking to enforce a foreign judgment in Malta. 

Both proposals are good and should be supported by all MPs. 

The more clamorous SLAPP cases are those in which large corporations seek to sue journalists or activists in foreign jurisdictions – MaltaToday knows this all too well with Steward Health Care opting to seek libel damages in the Spanish courts rather than opt for the Maltese courts – where damages and expenses to contest the case may be way beyond what any Maltese media house can ever afford. There have been numerable such cases, or threats of such cases, over the past decade affecting different media houses. 

But there could also be instances where the domestic courts are also used in such a way as to carpet bomb a journalist or a media house with the sole intent of breaking them financially. There have been instances like these over the years – MaltaToday had once suffered the brunt of a full Cabinet of Nationalist ministers suing over one article; and Daphne Caruana Galizia had 19 libel suits filed against her by db Group’s Silvio Debono, which he subsequently dropped after reaching an out of court settlement with her heirs. 

Disproportionate actions like these go way beyond the attempt to protect reputation but have the sole aim of destroying a media house, stifling journalism and creating a chilling effect on the rest of the journalistic community. 

The anti-SLAPP regime should also protect against these domestic instances of abusive behaviour and the amendments being proposed by the PN do just that. 

Furthermore, the anti-SLAPP regime as it stands today, allows the courts to impose a dissuasive penalty of not more than €10,000 on the party instituting the case. The rationale behind this is to discourage companies or high-powered individuals from even starting the process. Given the nature of these cases, which many times involve large corporations, wealthy and powerful individuals, the €10,000 threshold could hardly be considered to be dissuasive. 

The PN proposal aims to set the dissuasive penalties at ‘not less than €10,000 and not more than €100,000’ thus serving as a stronger deterrent. 

Once again, the PN proposal is intended to capture the spirit of the EU’s drive to introduce anti-SLAPP legislation across the bloc by introducing a more effective dissuasive penalty. 

This leader believes the two amendments will ensure a better law is in place. The government, which has a commitment etched in its electoral manifesto to recognise the media as the fourth pillar of democracy, should have no problem in agreeing with these changes. The Opposition’s proposals are another step towards strengthening the role in a democratic society of journalists and other actors involved in public participation. We sincerely hope the government does embrace this principle by supporting the amendments with its vote in parliament. 

However, by no means is the anti-SLAPP regime (even if the amendments do pass) the be all and end all of the conversation. 

Indeed, the Media Experts Committee that had been tasked by the Prime Minister to delve into a reform of several laws, had drawn up changes to the Constitution, the Media and Defamation Act, the Criminal Code and other laws to strengthen freedom of expression and help create an enabling environment for free journalism to thrive. 

Unfortunately, a White Paper promised by the government in October 2023 to ensure the widest possible consultation on these proposals has never materialised. 

Instead, we have heard Labour exponents and government MPs argue for the re-introduction of criminal libel and increasing the maximum level of libel damages. 

In her first speech upon becoming president, Myriam Spiteri Debono had said: “I emphasise that the media, together with the three organs of the State, is the fourth pillar of democracy.” 

Furthermore, in her Republic Day speech last December, Spiteri Debono reiterated: “It is important that the discussion regarding journalism as part of the tools of democracy continues.” 

This evening’s sitting is another occasion where the discussion to strengthen journalism can continue with the aim of taking another step towards recognising the media as the fourth pillar of democracy.