Labour’s parliamentary vote on Monday against the anti-SLAPP legislation, proposed by PN MP Jason Azzopardi, has been widely interpreted, by the government’s critics, to have been in bad faith. But that’s the optimistic interpretation.
It’s optimistic in the sense that that criticism reduces the scale of the issues. It changes the matter into a matter of the balance of power between political parties, with Labour voting against legislation that would provide greater protection for its critics.
But the issue is actually about the concentration of power in the hands of people who are not even politicians. It goes beyond the competition between the current government and its opposition. It’s about control over the flow of information that can determine democratic decision-making. It’s about popular sovereignty.
It’s optimistic in another sense. It suggests that the Labour government could have voted for the amendments if it wanted to. It chose not to. The critics are in fact suggesting that the government has a power it refused to exercise.
Why is this optimistic? Because the government itself has said it does not have the power. Its best expert legal advice – from various independent quarters – is that it is unable, at least on its own, to curtail the power of the rich to bully their less affluent critics into being silent about them.
In other words, the government’s own assessment about the precariousness of the public, vis-à-vis the rich, is even more sobering than that of its critics.
The background, for those who missed it: It’s currently possible for a Maltese journalist to publish something in Malta and be sued for libel abroad.
The problem: it’s entirely possible to publish a completely factual piece, well-sourced, but be sued in a country where defending yourself is so expensive that you will bankrupt yourself to defend your right to tell the truth.
That’s why the process is called SLAPP: strategic lawsuit against public participation. It’s a lawsuit designed to prevent you effectively from defending yourself.
Meanwhile, the person who has sued you might not have a legal leg to stand on. But he might have pockets deep enough to hire a legal team that plays for time until you’re ready to settle. Even if you play the hero, other news outlets will learn the lesson and tiptoe around that particular customer.
This is not a theoretical possibility. Last summer, Daphne Caruana Galizia was sued for $40 million by the Pilatus Bank chairman, Ali Sadr Hasheminejad, in the US state of Arizona. She never actually got to know about it. The case was withdrawn right after her murder.
Prior to that, she was threatened with just such action in London by Henley & Partners, the outfit selling Maltese passports. And lawyers for Pilatus Bank had threatened to do the same with other Maltese media organisations, unless they removed entirely legitimate news stories from their respective archives.
The outcome: the threat of financially ruinous lawsuits acts as censorship. News organisations might feel pressured enough not to report, or else to retract, perfectly true news stories that should inform your judgement.
The law, instead of the refuge, becomes the stick with which the weak are intimidated
Oh, and it needn’t be just news organisations, or bloggers you happen to detest. The wheel goes round.
Everyone can get their turn. And, apart from your favoured news organisation, the victim could directly be you.The outcome therefore need not have a partisan bias. But it certainly has a political (non-partisan) one.
Since it’s only very wealthy people or organisations that can afford to hire hotshot law firms in expensive, faraway jurisdictions, then the entire system is biased in favour of the rich, at the expense of the ordinary members of society.
Why is this political? Because it means that the rich, in addition to their economic power, now have the law on their side. They’re not bribing the judiciary. But they can shop around for the courtroom they want.
What happens inside the court will remain fair. But getting to the court will ruin you. Instead of the law being the arbiter of the political game, it now becomes one of the weapons inside the game. A weapon so expensive that only one side can afford it. The law, instead of the refuge, becomes the stick with which the weak are intimidated.
Therefore, not only do the rich, under this system, have wealth and law on their side. They are also able to control the flow of ideas and critical thinking.
To the power of money and the law, they can add the power of the means of persuasion. And once you control wealth, and can shut out the truth, you have a greater chance of being able to control the politics.
Hence why the issue goes beyond the current state of the two political parties. It goes to the heart of the distribution of power in society.
A liberal society disperses power so it’s not concentrated. Powers are separated. The influence of money on politics is monitored and should be transparent. You have pluralism in the media, which are independent.
A society begins to lose its freedom and jeopardises its liberties when wealth, political decision-making and the means of persuasion are concentrated and under the control of the same restricted group of people. The rituals of democracy might be preserved but the real power will lie elsewhere.
Owen Bonnici, the justice minister, is already in a weak position when he argues he speaks for a government that is in favour of media freedom and against the use of SLAPP suits. Leaked e-mails show that Joseph Muscat, the prime minister and his boss, approved of Henley issuing the threat of such a lawsuit against Caruana Galizia.
But let us take him at his word. Given the stakes, his new Media and Defamation Bill, no matter its improvements, are not enough. Nor is it enough to say, as he has been reported as saying on Tuesday, that the government does not rule out being being part of a discussion for an EU directive against SLAPP suits.
Larger member states, with larger, wealthier media organisations, are not in as urgent a position as Malta is. “Not ruling out participation” in such a discussion is passive and complacent.
If Bonnici wants to be taken seriously, Malta needs to champion EU action with energy and verve. If he waits for others to take action, it means he doesn’t really care. Or worse.
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