Anti-SLAPP legislation has been a long time coming. At the time of her assassination, Daphne Caruana Galizia was due to appear in court to answer for no less than 47 libel cases. They were instituted by disgraced former prime minster Joseph Muscat, the criminally investigated Keith Schembri, the notorious Konrad Mizzi, now apparently hiding in London, Chris Cardona and Joe Gerada of the German brothel fame, and other shifty characters.
Among that unholy collective of government ministers, MPs, officials, political appointees, Labour Party donors, and financial beneficiaries of the Maltese Labour government was a libel suit instituted in Arizona, for $40 million in damages. Defendants of such a lawsuit without very deep pockets would unlikely actually see the end of it before they became bankrupt.
The claim wasn’t genuine. It was instigated by Ali Sadr Hasheminejad, the Pilatus Bank owner. To say he is currently in a spot of trouble with US federal authorities is an understatement, as he is facing a combined total of 125 years in jail. His Arizona lawsuit was withdrawn the day after Daphne was killed.
Under current laws, each of those libel suits was legal, including being sued across the Atlantic for an article published in Europe, in a country with half a million inhabitants. Established newspapers are reluctant to fight defamation claims overseas at the risk of being financially crippled by such lawsuits.
Instead, some bow down to requests to take down contentious articles to save on huge sums of money they would burn through just by fighting the case.
The law is thus used to severely undermine the fundamental right to free expression. In strong democracies, the public fora should be flourishing with journalists and activists holding those in power to account. But the same tools that should empower activists to keep the government in check are being manipulated by powerful entities and officials to cripple journalists into submission and enduring silence.
Behold the reason they are called SLAPPs; they are strategic lawsuits against public participation. The real aim is not to win moral damages against lies, as intended, but to exhaust journalists’ financial resources in fighting very expensive legal battles, often in another legal jurisdiction. The threat of an expensive SLAPP suit is enough to bring about self-censorship that is so destructive to democracies.
Malta had the opportunity to prohibit expensive international lawsuits against Maltese journalists – that was back when Muscat was still prime minister, which means it was never going to happen.
In a leaked e-mail, Muscat himself had given his blessing for libel suits to go ahead against Daphne in the UK, instigated by passport-floggers Henley & Partners.
At the time of her assassination, Daphne Caruana Galizia was due to appear in court to answer for no less than 47 libel cases
Owen Bonnici, then justice minister, claimed that such legislation would be incompatible with EU law.
The issue is certainly complex but it does not help that the government consistently chooses to side with the aggressors. Back then, legal experts lamented the fact that the government of the time neglected to engage in a broader discussion with experts to enhance protections for our journalists.
Why would an autocratic government want to protect the people whose job it is to scrutinise it?
This is exactly why I have been campaigning for a European solution to stopping these vexatious lawsuits. Each member state has its own approach to defamation. Existing EU regulations complicate matters and as such are permitting SLAPP lawsuits.
Justin Borg-Barthet, a senior lecturer of EU law at Aberdeen University, has been working on analysing the current legal framework that facilitates SLAPP lawsuits.
Together with numerous NGOs, we have ramped up political pressure to seek a legally binding solution to protect journalists across the EU.
Efforts have been constant over the past couple of years. Regrettably, the previous European Commission suffered from a persistent inertia to act against SLAPP lawsuits. With growing support in the European Parliament and a spirited civil society, we hope to see positive strides for free speech and media freedom soon.
Some jurisdictions have already banned the practice. Thanks to our spineless incumbents, we know that Malta has not been willing to improve on media freedoms in Malta. They seem to find it comfortable to be on the wrong side of history.
We often speak of Damocles’ sword hanging over politicians’ heads, ready to hold them to account for their missteps – only in Malta, this onus is inverted against their critics. It’s no surprise then that media freedom in Malta continues to plummet, with report after report shining light on the dire situation of the press. They especially note stagnant political will to improve on problem areas.
Lessons from abroad should teach us that leaving the door open for SLAPP suits is a dangerous predicament and risks poking a terminal spoke in the wheel of the fourth pillar of democracy, and potentially for civil society.
This is not just a Maltese problem. In a letter to European Commission Vice President Věra Jourová, my colleagues and I explained that the European media scene has been plagued by SLAPP lawsuits for over 30 years. Exorbitant fines and forum shopping need to stop if Europe is to take free speech seriously from now on.
For the sake of reviving healthy public debate and for free and independent media, Europe needs an urgent, uniform effort that will effectively curtail this practice.
David Casa is Nationalist MEP and a Quaestorof the European Parliament