Anti-SLAPP amendment turned down
Minister says amendment goes directly against EU legislation
The anti-SLAPP amendment presented by the Opposition goes directly against EU legislation, Minister Owen Bonnici told the Consideration of Bills Committee yesterday.
The amendment put forward by PN MP Jason Azzopardi would have been be included in the revamped Media and Defamation Bill had it not been voted down yesterday.
SLAPP lawsuits refer to Strategic Lawsuits Against Public Participation, in other words when entities shop around for foreign jurisdictions to bring lawsuits against individuals worth exorbitant financial damages in an attempt to silence and intimidate. The legal fees associated in fighting such a lawsuit are enough to force an individual back down.
The Minister repeatedly stated that he is not an expert in the field, and four expert opinions he obtained expressed reservations about its impact in practice, and he is therefore following that advice. Bonnici explained that the government took legal advice from four separate legal entities; Professor Ian Refalo, Lawyer Paul Cachia, Attorney General Peter Grech and UK Law Firm Bird & Bird.
He said that all of them agreed that EU directives, specifically the judgments regulation, clearly state that a member state must recognise a sentence laid within another member state or any state that forms part of the Lugano Convention (Switzerland, Denmark, Sweden, Iceland.)
“Should we implement this amendment we would be going directly against EU law,” he said.
Therese Comodini Cachia then pointed out to the Minister that these directives also clearly state that the member state could be able to assert its sovereignty by granting the legislation the protection of public orders and public policy.
In fact, the government has employed such protection when it came to cases involving betting companies that are registered in Malta.
“We, as the Opposition, humbly ask the government to reconsider its position and grant this article the protection it deserves, so journalists in Malta can do their job freely,” she said.
With regards to libel suits within the USA or any country outside the EU, Bonnici said that the four experts found that Maltese law already includes legislation protecting Maltese citizens from foreign courts (unless the person is a resident or domicile of the other country.)
Azzopardi, who presented the amendments, began by referencing the SLAPP lawsuits initiated by Pilatus Bank, specifically the case that was filed by the Lawrence group, on behalf of Pilatus Bank in Arizona against assassinated journalist Daphne Caruana Galizia for damages up to $40 million, and the legal letters issued by Shillings Law Firm on behalf of Pilatus last October against Maltese media houses.
“We talk about a chilling effect these lawsuits have on journalists, but with the financial capabilities of Maltese media houses, this is a killing effect,” Azzopardi said.
“All we are saying is that if they want to sue for libel, they should have to come here and do it on an equal playing field.”
PN MP Simon Busuttil remarked that the country has an opportunity through this law to improve the media and defamation Bill. He firmly believes that an inclusion of anti-SLAPP legislation would serve to strengthen the entire Bill and protect journalists from being silenced.
“We are in a situation where journalists could be subject to a libel suit overseas, and I recommend to the Minister that we snap up this opportunity to protect journalists. We all know the context we are living in. Next week, we mark the six-month anniversary of the murder of Malta’s most prominent journalist, Daphne Caruana Galizia.”
He reminded Minister Bonnici how Caruana Galizia had been subject to a lawsuit in Arizona worth millions by Pilatus Bank. The suit was dropped shortly after her brutal assassination.
Minister Bonnici interjected by saying that within an EU member state context, the amendment could not be enforced while outside of Europe, there is already a law in place for Malta not to enforce judgments in jurisdictions outside of the continent.
Busuttil countered this argument saying the mere possibility of a rich company filing a suit in a non-European jurisdiction against Maltese journalists is having a chilling effect on the local press.
On the subject of whether this issue is ‘covered’ by Maltese law, if it is already covered, what is the problem with a specific law to underpin it?
The law being referred to is a generic protection stating a Maltese person cannot be compelled to stand trial for a crime that he/she was not present for.
Busuttil stressed that the protection is generic and questioned what would be so bad about including a dedicated, specific clause in the law that would extend that protection and send a clear message.
Bonnici took umbrage with online news reports saying that he is against the amendment, reminding the committee that he is following upon the advice received from experts in the field. He said that he expected PN MPs to present their own expert advice due to the highly specialised area of law.
Jason Azzopardi entered into a heated debate with the Minister regarding e-mail correspondence dating back to 2016 between Chris Kaelin from Henley and Partners, Prime Minister Joseph Muscat and Minister Bonnici where the former described how he would be filing SLAPP lawsuits in the UK against Caruana Galizia and the independent media houses.
Azzopardi hounded the Minister by highlighting how Bonnici never tried to dissuade the multi-million company from suing Caruana Galizia in the UK, meaning that he is not against SLAPP lawsuits against local press.
Bonnici hit back by saying that he never expressed support or opposition to the SLAPP lawsuit being proposed, but that he was merely informed.
The pair continued to duel, with Azzopardi questioning why Bonnici does not want to provide dedicated protection to journalists, and the latter slamming Azzopardi for not getting expert advice and asking him to ignore the expert advice he received from four different sources.