If you’re a multinational organisation subject to investigative reporting by a Maltese media house, it wouldn’t take much imagination to put it under psychological siege or even cripple it: file a vexatious defamation lawsuit for massive damages in a country where litigation costs can be stratospheric.
This emerges from research being undertaken by Justin Borg-Barthet, an expert and lecturer in EU law and Private International Law at Scotland’s University of Aberdeen.
The Maltese lawyer and academic has also recently drawn up an extensive report on the subject to the European Commission on behalf of five international NGOs active in human rights and media freedom.
Borg-Barthet told Times of Malta that Maltese media organisations are particularly susceptible to vexatious lawsuits in foreign jurisdictions given their limited resources.
Justin Borg-Barthet.As an example, he mentioned potential legal action in London, where legal costs are notoriously prohibitive.
“It would be very costly just to fight procedural issues of the lawsuit in London without even getting to the substantive matters of the case,” he said.
This, he added, was precisely the point of these lawsuits. The person suing would not necessarily be concerned with winning but simply with crippling a media organisation and in the process firing a shot across the bow of all other media houses.
An acronym has been coined for these asymmetrical legal attacks: Strategic Lawsuit Against Public Participation – or SLAPP.
“Aside from the financial cost,” Borg-Barthet said, “these lawsuits also place the journalist and media at the psychological disadvantage of having to fight a legal battle in a place where proceedings might be in a different language and under different legal provisions.”
The person suing would not necessarily be concerned with winning but simply with crippling a media organisation
The issue of SLAPP came to the fore last week following defamation lawsuits filed in Bulgaria by co-owner of Satabank against Times of Malta and separately against blogger Manuel Delia.
In the lawsuit against Times of Malta, Christo Georgiev is claiming that an article published in January 2019 has damaged his reputation and caused employees at three of his companies to question the integrity of their employer.
Anti-SLAPP legislation
Following the news, civil society organisation Repubblika called for legislation to protect Maltese journalists and anti-corruption activists.
The PN also quickly moved a private members bill in parliament designed to tweak the Media and Defamation Act to counter SLAPP.
The PN-proposed amendments are designed to provide legal cover for those targeted when they opt to ignore SLAPP lawsuits outside Malta.
The proposed amendment states that a defamation sentence handed down by a foreign court would be considered “contrary to public policy or public order” if the journalist or media house in Malta does not partake in the litigation proceedings.
As things currently stand, libel judgments by foreign courts already jar with Malta’s public policy, making the judgments unenforceable in Malta. The PN’s changes would add another layer by legitimising no-show by defendants.
Borg-Barthet said the amendment being proposed by the PN “would send the signal that the Maltese parliament is on the side of the media, but wider changes in European Union law are still needed”.
He explained that in the EU the change would likely have limited effectiveness and it can be challenged in an EU law context.
“It is useful for countries outside the EU, but within the EU, it ought to be part of a package of measures that reform EU law,” he said.
In last November’s report to the EU Commission, Borg-Barthet argued that EU law enables the abuse of defamation law “in a manner which has a chilling effect on press freedoms, and which consequently weakens the rule of law in the Union”.
The paper highlights the perniciousness of SLAPP lawsuits on journalistic vigour. In essence, they wear down media organisations by lengthy and costly litigation over procedural points – legal argumentation over jurisdiction (in which country the case will be heard) and choice of law (which country’s law applies).
Borg-Barthet then makes the case for changes to EU law to eliminate SLAPP lawsuits as a form of vexatious lawsuits whose wider effect is to discourage journalists from the riskier public-interest investigative reporting.
In Malta’s situation, given the vulnerability of the country’s small-scale media houses, even just receiving a letter threatening legal action in a foreign jurisdiction puts pressure on a news organisation to pull down stories to avert potentially crippling legal battles.
Threats of such legal action to Maltese media have in the past been made by Henley & Partners, concessionaires of Malta’s sale-of-passports scheme, as well as the now-shuttered Pilatus Bank.
Borg-Barthet proposes that EU law be changed so that defamation or libel suits would have to be brought in the courts of the country where the journalist or media organisation is domiciled.
The European Parliament has urged the EU Commission to introduce anti-SLAPP measures. Vera Jourova, the commission’s vice president, has recently said that the commission is exploring possible changes to provisions on private international law within the context of SLAPP counter-measures.
In 2018, the Justice Minister at the time, Owen Bonnici, dismissed the PN’s proposal for inserting anti-SLAPP provisions – similar to the amendment proposed last week – in law on the basis of potential incompatibility with EU law.