Government’s press freedom proposals ‘not enough’

The media experts committee appointed by Prime Minister Robert Abela as part of the recommendations of the public inquiry findings to implement press freedom reforms was not consulted on the drafting of the Bills the government presented to parliament.

This was confirmed by the Chair of the committee, former Judge Michael Mallia, who was also a member of the panel of judges on the public inquiry. He told The Shift, “the committee was handed a draft and we were tasked to comment on it. We were not involved in the drafting. I’m afraid you’ve got to address these questions to the office of the prime minister, which is where we got it from.”

This followed two weeks in which The Shift contacted every member on the media experts committee to attempt to get an answer to the question. Nobody replied, except lawyer Kevin Dingli, who referred us to the Chair saying he was “not authorised” to disclose information.

None of the other independent media outlets is reporting on the Bills proposed, as all of them are members of the committee. They also did not reply to questions from The Shift on the level of consultation held with them.

Despite the prime minister’s claims of having held a “broad and meaningful” consultation before appointing the committee, the Opposition said that it had not been consulted while a number of international press freedom organisations said in a statement that their offer for technical assistance in the implementation of the public inquiry findings has not been taken up by Prime Minister Robert Abela.

Reacting to the government’s announcement, international media freedom organisations said: “We have been concerned by a lack of transparent consultation with civil society and key stakeholders in this process to date. We urge the prime minister to engage in meaningful and transparent consultation going forward, in particular through publishing proposed legislation relating to media freedom”.

Comodini Cachia published the government’s media freedom proposals on social media, following the parliamentary debate on 27 January, where Prime Minister Robert Abela claimed that the Opposition had indeed been consulted about the draft proposals, saying he had given Comodini Cachia a copy of the proposals himself, after which the Opposition MP asked the prime minister for authorisation to publish them.

Comodini Cachia had been privy to the proposals but as the lawyer representing Daphne Caruana Galizia’s family, not the Opposition.

These are the mediocre proposals which @RobertAbela_MT think are enough to provide journalists with an enabling environment and to entrench press freedom in Malta’s constitution. https://t.co/WSgTKS5QOl

— Therese Comodini Cachia (@ComodiniCachia) January 27, 2022

The proposals by the government to guarantee media freedom are not enough to create an enabling environment for independent journalism in Malta she told The Shift. Her criticism is in line with that of the major media freedom organisations in Europe.

No end to posthumous defamation proceedings

One of the proposals put forward by the government is an amendment to Article 3.3 of the Media and Defamation Act.

The amendment defines how in the event of the death of an author or an editor while civil proceedings for defamation are underway or pending against them, then the court will not award damages against their heirs and may also, at the heirs’ request, summarily order that the case is discontinued.

Yet the plaintiff may request that if the alleged defamatory statement has a publisher other than the deceased author/editor, then the case may continue against the publisher instead of the heirs.

Comodini Cachia noted that although the amendment does safeguard the author’s heirs from paying compensation, it does not altogether stop defamation proceedings and an author/editor may still be found guilty of defamation after their death.

She also pointed out that the proposed amendment also raised questions about what would happen should defamation proceedings continue against a publisher – it may be hard for a publisher to gather the evidence needed to defend the work of a deceased author or journalist. The identity of sources may be unknown and contextual information may be confidential and may have only been available to the author.

This could potentially not only disadvantage the publishers from defending the claims in court, but it would also not excuse them from paying damages in the event of a guilty verdict.

Restrictive protection against SLAPPs

The government’s proposed amendments aimed at protecting authors, editors and publishers from SLAPP (Strategic Lawsuits Against Public Participation) also fail to protect journalists.

SLAPPs are intended to financially cripple journalists through threats of lawsuits in foreign jurisdictions where it would be financially impossible for media workers in other countries to mount a defence.

For example, Turab Musayev, the Azerbaijani-British National who was SOCAR Trading’s representative on the Board of Electrogas threatened to take legal action against The Shift and four other Maltese newsrooms, in the UK, following the publication of articles on the Montenegro wind farm scandal.

The government is proposing an amendment to Article 24 of the Media and Defamation Act that outlines how, in executing a foreign court judgment obtained against a Maltese domiciled author, editor or publisher and which orders the payment of damages/costs for an equivalent case of libel, then Malta’s court may limit the amount in damages to that which is allowed under the Media and Defamation Act, if three criteria are met.

These are: a) the foreign action was substantially based on claims related to Malta, b) the foreign action could have been filed in Malta, and c) foreign action was probably filed abroad as part of a strategy intended to place an unwarranted financial burden on the defendant.

“This is very restrictive,” said Comodini Cachia. The amendment makes no mention of whether a defendant has started his/her defence abroad, neither does it safeguard defendants domiciled in Malta from the costs of entering a defence abroad.

Comodini Cachia also underscores that while the amendment proposed by the government considers the strategy “intended to place unwarranted financial burden” on the defendant, the amendment does not consider the notion of the “chilling effect” in the defence against SLAPPs.

The anti-#SLAPP legislation proposed by @MaltaGov is not effective or sufficient. Much more needs to be done to make the media the 4th pillar of democracy in #Malta. @POLITICOEurope should stop with such a propaganda! https://t.co/tvebKX7ZZf

— Ricardo Gutiérrez (@Molenews1) January 13, 2022

Amendments to the Constitution

The government’s amendments to the Constitution include an amendment to Article 38, which is the addition of the formal recognition of a person’s right to respect for private and family life, home and communications as well as the ‘economic wellbeing of Malta’ as an additional criterion for which the State may interfere with one’s right to privacy.

These amendments are based on Article 8 of the European Convention of Human Rights although, at first glance, it remains unclear how they are related to media freedom or freedom of expression.

Other proposals by the government include amendments to Article 41 of the Constitution that guarantee freedom of expression and a formal statement that media freedom, media pluralism and the role of journalists shall be respected.

Another amendment to Article 41 includes the recognition of authorities’ duties to provide access to information (under conditions provided by law).

A difference in mindsets

When asked about the overall substance of the government’s proposals, Comodini Cachia said that perhaps the biggest difference “is one of mindset”, adding that while the Opposition’s proposals try to centre as much as possible around freedom of expression and public participation in debate, those of the government offer a very basic recognition of the right to freedom of expression and with no formal recognition of what that right includes.

The government also does not appear to consider the public as being a beneficiary of press freedom. “As they currently stand, the proposed amendments are ambiguous as to how much importance the government wants to give press freedom,” she said.