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Government steamrolls over opposition’s anti-SLAPP amendments

Owen Bonnici slaps down amendments to media law intended to protect journalists from foreign lawsuits intended to silence them

Government today voted down amendments proposed by the opposition to protect journalists against foreign lawsuits (SLAPP) intended to censor, intimidate, and silence critics by crippling them financially.

Despite the opposition’s pleas, government refused to reconsider its position and insisted that such a law would be in breach of EU law. Moreover, justice minister Owen Bonnici said, existing laws already protect Maltese citizens against judgements from non-EU countries, as long as the defendants refuse to participate in the court proceedings.

While the European Commission is actively assessing the possibility of proposing EU anti-SLAPP legislation to protect journalists, the Maltese government has ruled out introducing such legislation.

During a parliamentary meeting which was suspended a number of times, MPs discussed the new media law and Bonnici said government based its decision on advice given by three Maltese lawyers and international law firm Bird & Bird.

Bonnici said that legal experts, including Ian Refalo, Paul Cauchi and the Attorney General Peter Grech,  came to the same conclusion and agreed that no further protection for journalists was needed.

The minister said all experts agreed that Maltese law already protects Maltese citizens against foreign judgments and any changes to the law would be in breach of EU law.

“All laws must conform with EU laws and regulations, if not the Commission can take legal action against member states who do not observe these laws,” Bonnici said.

He added that the so-called ‘judgements regulation’ based on Brussels I and the Lugano Convention  clearly say that EU member states should respect other states’ court judgments.

“This means that the amendment put forward by the opposition would be in breach of EU laws,” Bonnici said.

Additionally, Maltese citizens are also protected against court judgements given in non-European countries he said.

“The Maltese lawyers have advised that what is being proposed by the opposition is already provided for by existing legislation.”

Bonnici said the law protects Maltese citizens who are not resident or domiciled in foreign jurisdictions as long as they refuse to participate in the foreign court proceedings.

MEPs from six political parties are also requesting an EU anti-SLAPP Directive which would allow journalists to request the expedient dismissal of lawsuits designed to silence them.

The tactic is employed by rich organisations that use the threat of expensive lawsuits in foreign courts to silence critical journalists and was recently used by Pilatus Bank as well as citizenship experts Henley & Partners.

Opposition makes its case

MP Jason Azzopardi, who presented the amendments on behalf of the opposition, cited the lawsuit filed by Pilatus Bank in the US in which it was seeking $40 million in damages from murdered journalist Daphne Caruana Galizia.

SLAPP lawsuits, Azzopardi said, do not have a chilling effect on journalists but rather “a killing effect” adding that whoever is against SLAPP has a neo-colonialist mentality.

Arguing that it would be against public policy to enforce judgements from foreign jurisdictions, Azzopardi asked Bonnici and other government MPs why government was against protecting journalists.

“Let’s rise above party politics and defend freedom of expression. We have to stop libel suits filed in foreign jurisdictions designed to silence journalists,” he said.

Azzopardi said 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 in breach of public order.

The MP argued that government was reducing the amendments to a matter of jurisdiction over civil and commercial lawsuits.

Azzopardi said the amendments are not a question of jurisdiction but public policy. Making his case to introduce specific protection for journalists he said, “this is a political decision. Journalists are not protected, so much so that Pilatus Bank went ahead and sued Daphne Caruana Galizia in the US for $40 million”.

Echoing Azzopardi’s argument opposition MP Therese Comodini Cachia said it was up to EU Member States to decide what violated public order in their respective jurisdictions.

“Government can vote against journalists but we will stand with them. We humbly ask government to defend freedom of expression and journalists who do their job properly,” she said.

Otherwise, the media law will be half baked, Commodini Cachia said, adding that failing to protect journalists could see newspapers and online portals close down when faced with crippling foreign lawsuits.

Former PN leader Simon Busuttil also weighed in on the issue and said that while EU law does require Member States to recognise, respect and enforce judgments from other countries when there is no absolute obligation to do so, especially if the judgment goes against the public order of a particular country.

He added that there is a school of thought which deems SLAPP lawsuits in breach of the fundamental right of freedom of expression.

“Now it’s up to us to decide the definition of public order and make sure that these lawsuits are not used to silence our journalists. We are here to protect journalists.”

On lawsuits filed in non-European countries, Busuttil asked why government does not want to strengthen the existing law by making a specific law to protect journalists.

He added that leaving the law as it was would create a difference between the enforcement of judgments from EU and non-EU countries.

But Justice Minister Owen Bonnici insisted on defending the government’s position.

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