Justice Minister Owen Bonnici on Monday afternoon argued that anti-SLAPP amendments could not be made to the new Media and Defamation Bill because they violated EU rules.
SLAPP (strategic lawsuit against public participation) lawsuits are designed to silence and intimidate journalists, often by burdening them with lawsuits in foreign jurisdictions.
In presenting the amendments, in the parliamentary committee for consideration of bills, Nationalist MP Jason Azzopardi said they were aimed at protecting journalists from “forum-shopped” foreign lawsuits where it would be prohibitively expensive for the journalists to defend themselves.
He cited as an example the case instituted by Pilatus Bank against s;ain journalist Daphne Caruana Galizia in Arizona last May, and threats of legal action made by British-based Shillings Group, also on behalf of Pilatus Bank, against local media houses last October.
In the Arizona lawsuit, Pilatus Bank had been seeking $40 million in damages from Ms Caruana Galizia.
Arguing that the amendment did not in any way prejudice the right of any individual or entity to bring accusations of libel against Maltese journalists and media houses before Maltese courts, Dr Azzopardi insisted that the enforcement of libel sentences handed down in foreign courts was against the interests of journalists.
He said it could promote a “chilling effect” among those who chose to investigate corruption perpetrated by those with the resources to bring forward such accusations.
Minister: Law already provides for protection for journalists
Replying, Dr Bonnici said that while he was not against such amendments in principle, the government had sought legal advice from three Maltese lawyers - Prof. Ian Refalo, Dr Paul Cachia, and Dr Peter Grech (the Attorney General) as well as from British legal firm Bird & Bird. They had unanimously concluded that the proposed amendments would violate EU regulations obliging member-states to recognise sentences handed down in any other member-state.
Lawyers had concluded that Maltese law already provided for the protection of individuals or entities
The three lawyers had also concluded that Maltese law already provided for the protection of individuals or entities against whom charges were being brought in the court system of countries within which they were not domiciled, as long as the individuals or entities in question had not chosen to be party to the respective case.
Dr Azzopardi countered that the Lugano Convention, which set out the obligation for member states to recognise sentences handed down in other member-states, allowed for exceptions in cases where the sentences were counter to public order or to the public policy of the member-state obliged to recognise the sentence.
It was up to member-states to decide which sentences violated the latter provision. Furthermore, he said, that the “four brilliant minds” who the government had consulted were seemingly assuming that Pilatus Bank had not sought legal advice regarding the protections granted by Maltese law, and were risking winning a case for $40 million in damages “only to have it framed.”
Opposition MP Therese Comodini Cachia concurred with her colleague that it was up to member-states to decide what violated public order in their respective jurisdictions. She called upon the government to legislate in order to consider all libel sentences handed down against journalists in foreign jurisdictions in violation of public order, thereby falling under the exception granted by Lugano.
Simon Busuttil (PN) said that the interpretation adopted by the four parties who had given their advice would ascribe to Maltese journalists less rights with respect to lawsuits originating from within the EU than with respect to those originating from without it, a situation which made no sense.
Furthermore, EU law was always to be interpreted in accordance with the European Charter of Fundamental Human Rights; the argument had been made that SLAPP lawsuits violated the fundamental right to freedom of expression.
Dr Bonnici said that he had sought legal advice because the area of international private law was very specialised and outside his competence. The fact that he had sought such advice demonstrated how seriously he had taken the amendment.
Questioning why the Opposition had not sought its own legal advice before bringing the amendments forth, he expressed his disappointment at this fact.
The government MPs on the committee then voted down the amendments. The bill was then approved unanimously by the committee.
Call for further study
The Institute of Maltese Journalists in a reaction to the debate called for further studies to ensure that domestic law could be applied so that SLAPP cases would be avoided.
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