SLAPP lawsuits from the US? Don’t open the lawyer’s letter…

The supremacy of EU law over the national laws of member states is the major reason why Malta would not be able to preclude foreign libel judgements from being enforced in Malta.

Last week, the government voted down an amendment to prevent SLAPP lawsuits from being upheld by Maltese courts, saying it was impossible to prevent an EU court decision from being enforced.

Justice Minister Owen Bonnici said the government’s decision was based on legal advice obtained from Attorney General Peter Grech, private international law expert Paul Cachia, human rights expert Ian Refalo and British law firm Bird & Bird, who all agreed that the amendments proposed would have violated the obligation of EU member states as set out in the Lugano Convention, to recognise sentences handed down in other member states.

A strategic lawsuit against public participation (SLAPP) is 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.

The tactic is employed by rich organisations that use the threat of expensive lawsuits in foreign courts to force news organisations to cave in to pressure, and was recently used by the private bank Pilatus as well as citizenship experts Henley & Partners.

The amendments sought to clearly identify the Maltese Courts as the only ones with the right to hear and determine proceedings for libel and defamation in respect of any publication made by persons normally resident, based or operating in Malta.

But the legal experts agreed that the SLAPP amendment would have allowed Maltese journalists to ignore defamation claims brought against them in EU courts, and that a foreign company operating in Malta would have been able to ignore any claims for libel or defamation against it in other countries.

It is arguable that plaintiffs can bring defamation cases against Maltese newspapers wherever they feel the defamation has occurred: potentially a rich plaintiff can file multiple libel cases in each of the 28 member states, decisions that could be enforceable by a Maltese court where a civil claim is justified.

“The courts of Malta will be obliged to disregard the proposed amendments if they are in conflict with EU regulations which impose clear and unconditional obligations on member states,” the experts said.

The experts, however, say that the Court of Justice of the EU has already addressed the threat of libel tourism, in the “Svensk Handel” decision, which found that this provision is said to provide journalists and publications some protection from SLAPP lawsuits.

A claimant, therefore, arguably could only file a lawsuit for libel or defamation against a Maltese journalist in Malta or in the country where the claimant is based, and not in another jurisdiction which would be more advantageous for him.

“A potential claimant is not free, for example, to choose to initiate proceedings in the jurisdiction which is most advantageous for him or most inconvenient for the defendant; rather he must start proceedings either in the member state in which the defendant is domiciled or in the member state in which the claimant has his centre of interest,” Bird & Bird LLP said.

Lawyer Paul Cachia said that in the case of non-EU courts, there was no reason to believe that a Maltese court would not protect Maltese defendants resident and domiciled in Malta, when sued for defamation in a foreign court where they are not domiciled or resident with the intent to intimidate or silence them, since this is already catered for in Maltese law – provided that they do not submit to the jurisdiction of the foreign court. Journalists should thus not respond to the summons from an American court!