Defamation lawsuits represent bulk of SLAPP actions across Europe

The bulk of defamation lawsuits and SLAPP actions in Malta in 2022 registered a spike due to freedom of information challenges filed in the appeals court by the Maltese government.

The second report by the Daphne Caruana Galizia Foundation, on behalf of the Coalition Against SLAPPs in Europe (CASE) said the SLAPP actions in Malta had claibed to 44, a significant change from four cases in the previous year.

The late journalist Daphne Caruana Galizia, killed in a car bomb on 16 October 2017, had been facing 33 lawsuits against her that same year. Her killers have been arraigned and convicted but alleged mastermind Yorgen Fenech has yet to face trial.

SLAPPs are defined as “abusive lawsuits” filed to shut down public interest journalism and other acts of activism, protest, whistleblowing, academic comments, or simply speaking out against the abuse of power. “Ultimately, the categorisation of a case as a SLAPP is a value judgement, since one can only ever infer an improper purpose from the circumstances of the case,” CASE said.

Such actions include legal threats that do not proceed to lawsuits, the number of which is accounted for in the report. “When SLAPP tactics are employed, very often the acts of public participation are shut down even before a lawsuit is initiated and the victims are so fearful that they do not speak about it, especially since a SLAPP threat routinely includes a ban on publication or public discussion of the threat.”

While the report maps Malta’s high rate of 19.9 cases per 100,000 population in Malta, effectively making it the highest across Europe, CASE said the increase is due to 40 Freedom of Information requests filed by The Shift News that have been challenged in court by the government.

The FOI requests, specifically demanding information on government advertising spend related to one media organisation only, the publishing house Mediatoday publisher of MaltaToday, have been upheld by the FOI Appeals Tribunal but subsequently challenged by government authorities in an appeals court.

While the European  database on SLAPPS had increased from 570 cases in 2022 to 820 in June 2023, the most common SLAPPs filed between 2010 and 2022 are defamation (590), followed by breach of privacy (41), and for the latter year, FOI appeals (40).

81 of these cases (9.5%) are cross-border, that is, the plaintiff and defendant are domiciled in different countries.

The three most common targets of SLAPPs are all media-related: journalists, media outlets, and editors, in that order. Activists and NGOs are the fourth and fifth most common SLAPP targets.

The most common type of SLAPP offenders are businesspersons (335) followed by politicians (227), and State-owned entities (113) in third place.

The issues that most frequently triggered the filing of SLAPPs were corruption, government, business, and environment, in that order.

In 2022, lawsuits costs included exorbitant demands in damages, with the highest totalling some €17.6 million. The lowest damages claim was a mere €1, as a symbolic gesture.The median value of damages claimed was €15,150, and the average €360,659.

In 8.3% of the cases in 2022, defendants faced criminal repercussions such as incarceration.