Vexatious libel lawsuits in foreign countries are a threat to media freedom because they wear down or cripple media organisations in costly battles, often over procedural points such as the choice of jurisdiction or law.

An assymetrical attack in a so-called SLAPP lawsuit (Strategic Action Against Public Participation) was recently directed at Times of Malta, and separately at blogger Manuel Delia, in legal proceedings in Bulgaria. This prompted the Nationalist Party to resuscitate a private member’s bill whose intention is to protect Maltese media from these lawsuits in foreign jurisdictions.

Similar proposals had been tabled in 2018 but the justice minister at the time had countered that libel judgments by foreign courts are unenforceable in Malta anyway, and that the provisions jar with EU law.

This is not exactly correct. Although judgments delivered in countries beyond the EU may be unenforceable, any media organisation or journalist slapped with such a lawsuit faces two bad choices: either fight the lawsuit on procedural points or ignore it and lose, and be chased for dues or even contempt of court in a particular country. This is not tenable.

The PN-proposed amendment is therefore essential to protect the media from vexatious libel lawsuits in countries beyond the EU.

When it comes to lawsuits across EU borders, the PN proposal is not a magic potion – it is a principle of the EU’s legal order that judgments within the Union are enforceable in other EU jurisdictions. Changes to EU law are needed to counter SLAPP within the EU.

In this regard, it was welcome news last week when European Commission vice president Věra Jourová promised to include the EU executive’s response on how to tackle SLAPP matters in a European Democracy Action Plan to be adopted by the end of this year.

The European Parliament had noted  in a resolution last December that in Malta, journalists, particluarly investigative ones, are increasingly facing such lawsuits intended purely to hinder their work and silence them.

The EU Commisison’s commitment came in response to demands for action from a group of MEPs called the Media Working Group, which include the PN’s Roberta Metsola and David Casa.

Before that happens though, the Maltese parliament can show that it is on the side of journalism by passing the PN-proposed amendment, and then tasking the government with making representations to effect EU-wide anti-SLAPP provisions.

Wider amendments are also needed to take the wind out of vexatious lawsuits within Malta. The Media and Defamation Act passed in 2018 still puts the onus on the journalist to prove that the article or broadcast is factually correct and not defamatory.  

This makes vexatious libel a possibility, designed to wear the journalist or media company down in costly proceedings and send a message intended to intimidate other media houses.

Just the threat of these vexatious lawsuits could curb the riskier investigative reporting, particularly if it involves information from anonymous sources. Sources cannot be revealed, and that can weaken a journalist’s defences.

New laws are therefore needed to counter SLAPP not just across borders but within Malta itself.

Chief among these is a reapportioning of the burden of proof so that the person who sues would have to prove that a journalistic report is false.

This could go hand in hand with greater weighting given to malicious intent: if the journalist got things wrong but acted in good faith, that would be a mitigating factor, while maximum damages would be handed down if malicious intent is proven.

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