A SLAPP action too far

Malta is under unprecedented international press scrutiny following last October’s murder of Daphne Caruana Galizia; and inevitably, part of this scrutiny has focused on press freedoms.

While some of this criticism may have been exaggerated, there can be no denying that Maltese journalism is indeed under threat in some respects. In particular, Maltese media houses are still vulnerable to SLAPP proceedings: i.e., “strategic lawsuit against public participation”, intended to censor, intimidate, and silence critics by burdening them with the disproportionate cost of a legal defence until they abandon their criticism. 

In its defence, government has pointed towards the recently enacted media law: which, although a huge step forward for press freedoms in many ways, does not necessarily address all the problems concerned. MaltaToday is currently facing a legal threat of this nature over an article which exposed the high concentration of companies linked to politically exposed persons from Azerbaijan – a country often criticised for alleged human rights abuses and violations of the rule of law – some of which are operating accounts at Pilatus Bank which has now passed under controllership since the arrest of its chairman and owner in the United States on fraud and money laundering charges.

The legal threat came from British law firm Mishcon de Reya, on behalf of Robert Baker: one of the directors of a French company whose ultimate beneficial owners are Tale and Nijat Heydarov, sons of the all-powerful Azerbaijani minister for emergency situations, Kamaladdin Heydarov

Although the article specified that there was no suggestion of wrongdoing, or that those mentioned had acted illegally, offence was taken at the use of a single word – ‘flagged’ – which the law firm claims was aimed at linking Baker to suspicious transactions.

Even at a glance, two facts emerge painstakingly clear: one, the threat is of a highly vexatious nature, as the word ‘flagged’ implies nothing of the kind (it merely means that the Daphne Project had drawn attention to Baker’s connections with the Azerbaijani ruling elite). Two, the information contained in the article is self-evidently of a public interest nature, and therefore clearly constitutes ‘fair comment’. Indeed, it would be a failing on the part of the press not to report such information, given the revelations concerning Pilatus Bank, and especially the broader context of the Panama Papers – which revolved around the central premise of the public’s right to know about the movement of global wealth, especially where governments are concerned.

It, therefore, becomes inescapable that the intention behind such legal threats is not necessarily to successfully sue this newspaper in a foreign court – because the case itself doesn’t have a leg to stand on – but to maximise the expense involved in legal defence, in the hope that MaltaToday would cave into the demands. As such, it is a case of a SLAPP threat being taken too far.

But it is not an isolated incident. British law firms have a reputation for muscling in on journalists and silencing critics with the threat of ruinous court action. SLAPPs are being used by financial elites and tax pirates to condition Maltese journalism: MaltaToday has in the past been threatened with UK court action by a Lebanese energy giant, a British biotech entrepreneur, and more recently, a UK asset company with interests in football and shipping.

Unfortunately, however, Maltese law is so far toothless when it comes to defending local media from this form of censorship. Government recently voted down an Opposition anti-SLAPP amendment to the media bill, on the grounds that it had doubts about its practicability in the context of European law. This was at best short-sighted: for even if the amendment, as proposed, may have been problematic, government should still have discussed ways to iron out the legal issues and achieve the same objective.

Certainly, the main aspect of the amendment could have been retained. The discarded amendment proposed that any judgement of any court outside Malta on alleged defamation, handed down against Maltese residents, would have been considered “contrary to the public policy or to the internal public law of Malta” when the defendant would not have defended the case on its merits in the foreign court.

It also proposed that it that proceedings in respect of any publication, made by a person or entity normally resident or domiciled in or operating within Malta, shall be brought in a Maltese court and that these courts will have exclusive jurisdiction to hear and determine such proceedings “irrespective of whether the publication in question is hosted or otherwise broadcast from servers located outside Malta”.

There are good reasons to pursue this aim through local legislation. If the Maltese courts uphold decisions delivered in a UK court on defamation actions, the consequences for the free press and Maltese democracy would be disastrous.

Government has an obligation to defend the free press. It must send a clear message that all SLAPP actions emanating from EU courts are against Maltese public policy; otherwise, the future of journalism in Malta will be at risk.