A key objective of the European Commission’s Democracy Action Plan, presented in December 2020, is safeguarding and strengthening media freedom. The media and civil society must be able to participate freely in an open debate on the political, economic and social issues that affect our daily lives and our future.
In her State of the Union address on September 15, 2021, Commission President Ursula Von der Leyen described information as “a public good” that must be nurtured and protected.
The same day, the commission presented its first-ever recommendation to strengthen the safety of journalists and other media professionals. Then, on April 27, 2022, it published its proposal for an anti-SLAPP directive.
SLAPP, an acronym for Strategic Lawsuits Against Public Participation, refers to a type of litigation, or threat of litigation, that, as the name implies, is used strategically to threaten freedom of expression. The lawsuit is generally filed by powerful corporations or high-profile individuals against journalists and activists to prevent the publishing of information that is in the public interest but could be harmful to the reputation of the claimant, though not necessarily illegal. There is usually a disparity of power and resources between the plaintiff and the defendant.
The commission’s proposed anti-SLAPP directive aims to provide safeguards at EU level against the malicious use of SLAPP. The safeguards have been carefully formulated not to encroach on the national competences of the member states in this area.
The subject matter of the draft directive is an area of non-exclusive competence and, therefore, it must respect the two fundamental principles of subsidiarity and proportionality as laid down in Article 5 of the Treaties of the EU.
The draft directive is based on Article 81(2) of the Treaty on the Functioning of the European Union (TFEU), which is the regular legal basis used for judicial cooperation in civil matters having cross-border implications, that is, the power to adopt measures that ensure “the elimination of obstacles to the proper functioning of civil proceeding, if necessary, by promoting the compatibility of the rules of civil procedure applicable in the Member States”.
In this case, we, as Maltese legislators, have to legislate very carefully as there are very delicate private international law issues and also to ensure the respect of the international law principle of reciprocity.
To determine what falls within the scope of the draft directive it is necessary to establish what constitutes “public participation” and “public interest”. Both are defined broadly and cover not only journalistic activities but actions of civil society, NGOs, academics and others. ‘Public interest’ is defined as any matter that affects the public to the extent that the public may legitimately take an interest in it, such as public health, the environment, safety, climate and fundamental rights.
A key legislative measure of the proposed directive is the early dismissal of manifestly unfounded court proceedings. The courts will be able to take an early decision to dismiss a clearly unfounded case.
In such situations, the burden of proof will be on the claimant who has to prove that the case is not manifestly unfounded. If the case is dismissed as abusive, the claimant will bear all the costs, including the defendant’s lawyers’ fees, and can face claims for compensation and dissuasive penalties. One has to tread carefully on the national implementation of this rule as it cannot in any way hinder due process.
Furthermore, the draft directive aims to protect SLAPP victims against third-country judgments. Member states will be able to refuse recognition of a judgment coming from a non-EU country against a person domiciled in a member state if the proceedings are found manifestly unfounded or abusive under the member state’s law.
The Maltese government has already introduced legal measures of its own as anti-SLAPP legislation- Edward Zammit Lewis
The proposed directive is complemented by a recommendation which encourages member states to ensure national legal frameworks provide the necessary safeguards, similar to those at EU level, to address domestic cases of SLAPP.
Member states are particularly urged to ensure that the procedures applicable to defamation, which is often the pretext for launching SLAPP, do not hinder freedom of expression or have a negative impact on a free media environment. This is certainly not the case for Malta as our regime encourages full freedom of expression.
The proposal for an anti-SLAPP directive still has to be negotiated with the European parliament and council before it becomes EU law. The proposal will probably undergo substantial modifications during these inter-institutional negotiations as some member states have quite divergent views on SLAPP legislation while others argue that it is purely a matter of national competence.
In Malta, a private member’s bill in 2018 was a non-starter and an opposition initiative last year was also inadequate both from a substantive and formal approach.
Considering the legal complications and the sensitivity of anti-SLAPP legislation, the government decided to consult stakeholders, including the Institute of Maltese Journalists, international journalists and Maltese people who have allegedly been victims of SLAPP.
Last September, the prime minister informed parliament that these consultations were at an advanced stage and that draft legislation is in place and to be followed by a wider reform of the sector based on the recommendations of journalists and other stakeholders.
It is crystal clear that the Maltese government has already introduced legal measures of its own as anti-SLAPP legislation. It has committed itself to the introduction of more legal measures on this front, to the limits that national law and treaty obligations permit.
I have been proven right in saying consistently that, for effective anti-SLAPP rules, there has to be clear and common EU rules for all (vide my contribution ‘We don’t slapp the media’). This is an answer to unfounded allegations in Malta and abroad that the government has dragged or is dragging its feet on this issue.
The commission’s proposed directive makes the way forward clearer for everyone. The legislator, however, must ensure the necessary balance between access to justice for all and privacy rights and, on the other hand, the protection of freedom of expression and information.
Edward Zammit Lewis, MP, former Labour minister for justice