The pandemic has left an adverse effect on all industries but an unlikely victim has been the European media landscape.
Healthy democracies are premised on a serious commitment to ensuring a free exchange of information and ideas. Threats to that free exchange should be met with a prompt reaction.
We have no better guarantee of information flow in Europe than by a healthy, independent and well-resourced fourth estate. The media’s function in our democracies is rarely overstated: it is because of journalists that we have been able to track down vast sums of money across continents, in the most opaque and far-flung jurisdictions of ill-repute.
The media plays an important role in holding public officials to account. Parliamentary committees with oversight of the executive are important but even they need the media to bridge the gap between often convoluted political machinery and public information.
No wonder, then, that support for strong, independent journalism is hard to come by in the political sphere. No corrupt politician wants to make it easier for the press to hound them.
The result has been the sharp rise of SLAPP suits.
Picture a well-resourced, bad-intentioned businessman or politician with deep pockets and an army of lawyers at the ready. A journalist picks up an uncomfortable story involving some shady deal that is most certainly in the public interest. They can try their luck in court. Or they can hedge their bets in court multiple times, in different countries, all at once.
With enough money, journalists can be sued in multiple jurisdictions, like the US and the UK, where court fees tend to be much higher. Before the cases even begin to be heard on the merits, the journalist (and likely their editor) has to go through the trouble of paying court fees, instructing lawyers and paying for their services and wasting precious time getting papers in order, not to mention the stress.
All this even while the journalist’s story adds up. But in the game of adding up, money beats facts through abusive court proceedings. The cases would have had no chance in court. But journalists lacking the funds of the wealthy have a poorer chance of covering their costs.
Justice is turned into a game of attrition, eliminating the party with the least resources irrespective of the truth. That is the essence of a SLAPP suit. And, between 2010 and 2021, Malta had the highest per capita rate of SLAPPs in Europe.
Between 2010 and 2021, Malta had the highest per capita rate of SLAPPs in Europe- David Casa
It is very difficult to completely eradicate vexatious litigation. It requires coordinated national and international efforts. Without both, loopholes remain. The reality is that tackling this issue requires a balancing act of two legitimate interests: the right to reputation and the freedom of the press.
Meanwhile, there are steps that can be taken domestically. Those efforts were rejected by the Maltese government during the last legislature.
Owen Bonnici – who was accused of acting in breach of the European Convention on Human Rights – insisted that he knew better than the European Commission and the European Parliament.
Now, the Maltese government has a new opportunity. Last month, the European Commission proposed an anti-SLAPP package with two complementary fronts. The first is a legislative proposal to kick-start negotiations on a directive that would extend protection from abuse court proceedings with a cross-border dimension. This will make its way through the European Parliament, where I pledged to contribute to its success in any way I can.
While the legislative process runs its course, the commission also published a recommendation for EU member states that carries significant political weight. This means that member states can, from today, effect protections within their own jurisdiction. While the directive will eventually enshrine international protections for journalists and human rights activists who get sued outside their country of domicile in expensive jurisdictions like London, the recommendation covers protections at home.
There is no silver bullet to stop abusive court proceedings. Rather, there is an array of measures available, among them an early dismissal remedy for when cases are seen by the court as being manifestly unfounded, with costs burdened on the typically wealthier claimant.
Member states, including Malta, have, therefore, been asked to pick a side. They could adopt the recommendation, strengthen those laws that strengthen the free press, assist local media organisations and make it easier for journalists to defend their work and do their job. Or they can ignore Brussels and reluctantly wait for the directive.
When Commission Vice-President Věra Jourová presented this package, she hailed it “Daphne’s law” after the inspiration she took from her struggle against politicians who still hold office in Malta. The Maltese government has an opportunity to show it learnt something from the hapless assassination of Daphne Caruana Galizia. Its decision can either help to repair or to continue taxing Malta’s reputation as a serious democracy.
David Casa PN MEP, co-chair of EP Media Working Group