Let’s get one thing straight: every time journalists are under siege, your own right to free expression shrinks. Because free speech isn’t primarily about the right to prattle or emote; it’s about your right to give your reasoned view of the facts. If the people ferreting out the facts on your behalf are being persecuted, it’s your right to know and decide that’s hollowed out.
What about corrupt journalists? The hacks, mercenaries, partisan propagandists, attack dogs, intelligence agency operatives, smear artists, and fake news manufacturers? They’re only journalists in name. They’re part of the apparatus designed to bring down the real journalism on which so much of democratic accountability rests.
We need to get the relationship between journalism and civic dignity right. Otherwise, we will not see the significance of the recent news out of Brussels: the agreement reached between the European Parliament and heads of government on rules to protect journalists (and NGOs and human rights activists) against abusive lawsuits (SLAPPs).
If you don’t see the connection between the protection of journalists and the preservation of your right to keep the powerful accountable, then you’re bound to skip the story in search of something more interesting. But without the protection of journalists, you will never get to know what’s truly interesting – indeed, what might be damaging your interests.
The agreement on SLAPPs has been nicknamed Daphne’s Law because it’s designed to prevent what was unleashed upon Daphne Caruana Galizia from being visited upon other journalists.
Alas, it isn’t clear whether the new law will manage this. First, the agreement is provisional. Second, a lot will turn on the meaning of the key terms of the law.
It is meant to prevent journalists being slapped with multiple lawsuits in expensive jurisdictions; SLAPPs aim to get media organisations to retract stories not because they’re untrue or unsourced but because the expense of fighting it out in court risks the financial ruin of the journalists.
The effectiveness of such legislation, however, hinges on key terms. Central to the effectiveness of an anti-SLAPP law is the definition of terms like “manifestly unfounded” or “vexatious litigation”. If they are defined too strictly, they risk being applicable solely to a few egregious cases.
A comprehensive definition must include orchestrated harassment – such as multiple lawsuits for the same article and simultaneous, identically written lawsuits instituted by different people.
A fundamental shift in the burden of proof is indispensable. The party initiating the SLAPP should bear the costs of a legal battle until it’s decided. The money that a media organisation needs, merely to respond to a legal challenge, can be prohibitive.
Time spent preparing for court is also time away from investigating stories
Reversing the burden dissuades frivolous lawsuits. If a lawsuit is judged by the courts to be justified, then the money will be recouped.
Flipping the burden also holds aggressors accountable for their attempts to muzzle free expression. Journalists turn up in court when they could be working. Time spent preparing for court is also time away from investigating stories. That distraction, too, is a cost. It’s borne by democracy in general, not just journalists.
These issues were laid out with great clarity at an October conference organised by The Shift News (‘Silencing Freedom, Weaponising the Law’) on the various techniques of ‘lawfare’ conducted against journalists. If the eventual law, therefore, doesn’t address these concerns, it won’t be an oversight. On the contrary, it will mean that governments are resisting effective action.
We need to monitor the contribution of the Robert Abela government to the European discussion. It has so far resisted implementing the recommendations of the Caruana Galizia public inquiry to protect journalists.
Indeed, it’s managed to do worse. While mouthing its opposition to SLAPPs, it has wholeheartedly engaged in a variation. Instead of suing journalists, it resists Freedom of Information requests by appealing them all the way to court, even after even after the State’s own authorities have requested the government to give the information.
Even that isn’t enough. It institutes dozens of parallel cases rather than a single test case, which an honest government would do. Its aim is the same outcome of SLAPPs: to exhaust and demoralise journalists and get their organisations to risk tens of thousands of euros to pursue their rights.
Successive Maltese governments have consistently tried to sever the link between democracy and the unobstructed pursuit of truth. We have only had the right to freedom of information for a decade or so. It has never been honoured without strenuous resistance.
On the contrary, among the insults our democracy has had to bear from its own public servants has been the sneer – such as from the justice minister, no less – that since everyone can say what they like, then we have freedom of expression.
The sneer denies outright that the right to access information transcends the realm of journalism – that it’s a fundamental civic right that underpins the very essence of democracy.
A robust and unrestricted flow of information isn’t just about reporting. It’s about empowering individuals to make informed decisions, fostering accountability, and enabling active participation in the democratic process.
To claim that one can exercise full freedom of speech without access to comprehensive information undermines the essence of rational debate, reducing speech to mere emotive expression rather than informed discourse.
When politicians claim that, what they’re saying really is that they regard our speech – everyone’s speech, including their own supporters’ – as mere blather.
If we take that lying down, they’d be right.