EU must intervene to protect journalists against SLAPP

The fact Daphne Caruana Galizia’s “widower and sons are still fighting costly and damaging SLAPP defamation cases against her in the Maltese courts, two years and one month after her murder” is almost as shocking as her assassination, the European Centre for Press and Media Freedom (ECPMF) said at an event in Brussels on 12 November.

Some 80 attendees — including politicians, lawyers, journalists, and activists — gathered at the ‘Expert Talk on Anti SLAPP Solutions’ to discuss the way in which “SLAPP lawsuits are used by the rich and powerful to silence journalists and critics”, and the fact that their use in Europe has increased.

SLAPP’s (or ‘strategic lawsuit against public participation’) are used by large corporations, politicians, and businessmen to “stop investigative research, silence criticism, or squash political expression.

The tactic is employed by rich organisations that use the threat of expensive lawsuits in foreign courts, usually the US or the UK, to silence critical journalists. Just mounting a defence for such a case is prohibitively expensive for journalists and newsrooms.

Plaintiffs do not intend to win their cases in the court. They know they have little or no chance of winning. Their aim is to involve journalists and critics in lengthy and costly procedures which ultimately produce a chilling effect,” according to ECMPF.

Participants at the event shared their expertise about potential anti-SLAPP legislative solutions and discussed potential mechanisms which could be adopted by EU institutions to limit the abuse of defamation and other laws.

Justin Borg-Barthet, a legal academic and professor at Aberdeen School of Law, described SLAPPs as “immensely chilling”, and said that the EU must instigate reform and introduce new directives to protect freedom of expression.

Borg-Barthet later told The Shift that the event was an “important further step towards reform of EU defamation law that would severely limit the abuse of existing EU legislation and narrow gaps which unscrupulous actors and their lawyers regularly exploit.”

“EU legislative intervention is essential,” he said, “particularly when the EU faces unprecedented threats to human rights and the rule of law in so many Member States.”

The event was organised by the ECPMF, along with the European Federation of Journalists, Index on Censorship, Reporters Without Borders, International Press Institute, Committee to Protect Journalists, Scottish PEN, Global Witness, Article 19, Greenpeace International, The Daphne Caruana Galizia Foundation, Osservatorio Balcani e Caucaso Transeuropa and PEN International. Co-hosts were MEP David Casa, MEP Stelios Kouloglou and MEP Viola von Cramon.

Casa said the input received would help shape future EU policy. “Thanks to the experts that were present, we were able to identify specific legal provisions that are being exploited by powerful people to harass and intimidate journalists. We will start immediately to work on these issues,” he said.

“We have had to contend with the ridiculous situation of the Maltese government claiming that a solution must be found at EU level, and the European Commission saying they could not find a legal basis, and that action had to be taken by the Member States. This must end. A European solution is warranted, justified and necessary,” he added.

The Maltese government has repeatedly refused to ban the use of SLAPP suits in Malta. The Shift has been threatened with SLAPP suits twice – one by a Russian banker and another by Henley & Partners, Malta’s concessionaire for the cash for passports scheme. The same firm also targeted Daphne Caruana Galizia prior to her assassination, with the journalist publishing emails sent by the Henley & Partners chairman Christian Kalin to Prime Minister Joseph Muscat, his chief of staff Keith Schembri, Justice Minister Owen Bonnici and the CEO of Malta’s cash for passports scheme Jonathan Cardona on their agreement to proceed against her.

In the emails, “Kalin outlined a plan under which letters designed to intimidate with the threat of a financially ruinous and extremely cumbersome lawsuit in the ‘UK courts’ were to be sent to me, to the Opposition MP Jason Azzopardi, and to ‘three media houses’ in an attempt at dissuading us from further scrutiny of Henley & Partners and its opaque and damaging activities in Malta,” Caruana Galizia had written.

The Prime Minister’s reply was, “i don’t object” (sic). Schembri replied: “Thanks, Chris. This looks good. Very kind regards”.

Caruana Galizia was brutally killed, and she died not knowing that the now-defunct Pilatus Bank, which she had brought to the public’s attention, had filed a case in the US in which it was seeking $40 million in damages from Caruana Galizia. She was already facing over 40 libel cases in Malta and her assets were frozen as a result of a libel suit filed by Economy Minister Chris Cardona that he later dropped to avoid scrutiny.

Pilatus Bank also threatened SLAPP lawsuits against the mainstream media in Malta that resulted in them deleting the stories, effectively altering the public record. A Bill proposed by the Opposition to protect local journalists was rejected by the government.

In a video conference on 14 March 2018, Henley & Partners told the EU parliament’s delegation investigating the rule of law in Malta that they only sued Maltese journalists if they got an informal ‘OK’ from the government.

The ECPMF also highlighted the fact that British journalist Carole Cadwalladr was subject to a SLAPP suit which could leave her homeless and bankrupt. It was filed by businessman Aaron Banks, the founder of Leave.EU, after Cadwalladr published a series of articles about his links to Cambridge Analytica at the time of the Brexit referendum.

MEP Viola von Cramon, co-host of the Brussels event, described SLAPPs as “legal abuse” against journalists from major law firms. “I may not be a journalist,” she said, “but I know it is our responsibility to find solutions to protect journalists against SLAPPs”.

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