Explainer | Garnishee orders and freedom of speech

Economy minister Chris Cardona’s request to the courts to slap a €46,000 precautionary warrant on blogger Daphne Caruana Galizia has been met with indignation and shock by the Maltese media. It has also shone a spotlight on the precautionary warrant – a perfectly legal tool that allows courts to freeze the assets of journalists facing libel charges, with potentially grave implications on freedom of speech.

What are precautionary warrants and garnishee orders?

When suing somebody, a plaintiff might feel concerned that the defendant could dispose of or funnel away their assets before the case is closed. Therefore, even if the court rules in the plaintiff’s favour, he will not be able to obtain full redress. The precautionary warrant is a legal right offered to everyone, allowing them to request that the court freeze the defendant’s assets until the case is closed. If the plaintiff emerges victorious, compensation will be automatically pulled out of the frozen assets.

There are several types of precautionary warrants, one of which is a garnishee order – whereby banks pass on to the courts money directly from their clients’ bank accounts. Cardona’s €46,000 garnishee against Caruana Galizia is based on the maximum damages liable for the four defamation cases he and his consultant Joe Gerada have instigated against her, ie. €11,500 per case.

How common are precautionary warrants in the legal world?

“Very, very common”, lawyer Andrew Sciberras told MaltaToday. They are most frequently used in commercial cases, but are also often employed in separation and divorce cases, or when claiming damages from a defendant. A precautionary warrant can be requested for practically any case, except to secure rights or claims against the government or the armed forces. Precautionary warrants on libel cases against newsrooms and journalists are certainly extremely rare, but not unprecedented. 

In 2008, the tuna ranchers lobby threatened MaltaToday with a €2 million garnishee order over reports on discrepancies in export figures related to the tuna ranching industry. The newspaper was forced to back down on the reports.

In 2015, the Times of Malta was hit by a warrant of seizure, after the Malta Union of Midwives and Nurses demanded it cough up the €4,000 it had won in a libel case against the paper.

Can people served with a garnishee order appeal the decision?

Quite simply, no. The court reaches its decision based solely on the plaintiff’s request and isn’t obliged to call in the defendant to testify. More often than not, it accepts the request.

However, defendants can choose to issue a counter warrant, often attached with a bank guarantee as an alternative form of security to replace the precautionary warrant. They can also request that the precautionary warrant be revoked, for a list of reasons such as that the amount claimed by the plaintiff is excessive.

The court can choose to make a decision on the defendant’s application behind closed doors, or after hearing out both parties.

However, there is no clause within the law that allows defendants to argue that the precautionary warrant should be revoked because it poses a threat to freedom of speech or because it goes against their human rights. In this case, as Sciberras explained, Caruana Galizia could opt to open a separate human rights case, arguing that Cardona’s precautionary warrant creates a chilling effect on press freedom, but not before exhausting all ordinary remedies, primarily by filing an application requesting the revocation of the precautionary warrant under one of the grounds listed in the law. 

How have the Maltese media reacted?

The overwhelming reaction was one of outrage and shock at Chris Cardona, with editors and journalists from all English-language newspapers, as well as the PN media, condemning his court action.

Caruana Galizia herself has responded by urging journalists to start pulling the same rope and fight “the common enemy” as she sees it - the Maltese government.

Read more: ‘Against the Cardona garnishee. But always in favour of the truth’ 

How have the PN and smaller parties reacted?

Opposition leader Simon Busuttil today pledged to change the law so that courts will no longer be able to issue garnishee orders in libel cases, which he described as a “gag on free expression”.

Our clear commitment: @PNmalta will remove all gags on free expression, such as criminal libel and garnishee orders against journalists.

— Simon Busuttil (@SimonBusuttil) February 9, 2017

Shadow justice minister Jason Azzopardi warned that Cardona’s case will set a dangerous precedent, whereby critical journalists will start being slapped with garnishee orders.

“We are living in a society where religious vilification was decriminalized for the sake of freedom of expression, but a minister gets to abuse of the legal process so as to muzzle and gag journalists,” he told MaltaToday. “Only yesterday, the justice minister [Owen Bonnici] requested the Speaker to censure me because I had given a comment to Politico. It’s bewildering and shocking, a sign that the government is slowly but surely trying to shut up all its critics.”

The Democratic Party (PD) said it is unacceptable for precautionary warrants to be filed in libel cases, which they warned could be the start of a slippery slope for Maltese democracy.

Alternattiva Demokratika leader Arnold Cassola in a Facebook post mocked Cardona as a “pussy” and a “wimp”.

Cardona: stop being a pussy ... Just be a man!

Chris Cardona, I fully understand your anger if what is... https://t.co/6GvdDMuoBL

— Arnold Cassola (@ArnoldCassola) February 9, 2017

Front Against Censorship activist Ingram Bondin warned that the case sets a worrying precedent and places journalists' livelihoods at risk. "This island needs to be rid of parochial politicians who think they can overturn the entire foundations of freedom of speech just because they have personally come under attack by some section of the press. Get a grip," he said.

Asked whether the law should be updated to add further safeguards for journalists Dr. Sciberras expressed caution and argued that whereas this is a matter that should indeed be discussed and debated, it does not make much legal sense, and may indeed set a bad precedent if one were to outright exclude the application of precautionary warrants in certain types of cases, or to otherwise give a privileged status to certain categories of persons. Indeed, there is one entity that enjoys "exempt" status from all precautionary warrants bar one (the warrant of prohibitory injunction), this being the Government, but this is only understandable as imagine the chaos that would ensue that if Government funds and/or property were to be sequestered, which funds and/or property are after all the public's.