Are EU regulations facilitating SLAPP suits?
The stated aims of these regulations are legal certainty; foreseeability on where a case is heard and which law is applicable; and seamless recognition and enforcement of judgments across Member States which in turn serve to minimise barriers to freedom of movement within the European Union.
In the past 3 years, the Maltese media landscape was on the receiving end of what are referred to as SLAPP suits. In simple terms, these are lawsuits filed by plaintiffs with deep pockets and considerable resources with the objective of bullying the defendants - namely journalists, bloggers, media houses and NGO’s - into silence.
This is normally achieved when the defendant has to back down when faced with the prospect of exorbitant legal costs. This is typically achieved by filing an action in a jurisdiction where it would be prohibitively expensive for the defendant to mount a legal defence. Filing multiple actions locally could also conceivably have an element of SLAPP but for the purposes of this article, crossborder defamation lawsuits will be the main subject matter.
Recently, blogger Manuel Delia, together with The Times of Malta, had been sued for defamation by the owner of a private bank based in Malta, a Bulgarian national, in his native country. This newspaper too was also threatened in the past with exorbitant law suits if it did not take down certain online content.
But how can a blogger or a reporter employed by a Maltese media house, who is a Maltese national habitually resident in Malta, writing in a blog published in Malta and whose content related to the activities of a bank incorporated and managed in Malta, be sued in another country?
This situation stems from a specialised section of the law known as Private International Law, which regulates how a dispute which has a cross-border element is heard and decided. These rules regulate; a) which jurisdiction has competence to hear the case; b) which law is to be applied to determine the merits of the case and; c) the conditions for recognition and enforcement of judgments emanating from a foreign jurisdiction.
Each State has its own Private International Law rules. However, EU legislation has largely harmonised Private International Law within the European bloc, with the Private International Law rules of the individual Member States being residually applicable in foreign disputes involving third country natural or legal persons
Therefore, the effectiveness of a defamation lawsuit filed in another jurisdiction against a Maltese national/entity depends on whether the action is filed in another EU Member State or a nonEU Member State.
In the case of the latter, the Maltese defendant is reasonably protected by the Code of Organization and Civil Procedure (COCP). If the Maltese defendant does not enter a plea or any other form of action that is tantamount to submitting to the jurisdiction of that foreign court, such a judgment would necessarily be obtained in default and consequently not enforceable in Malta in terms of Article 827 of the COCP – albeit possibly enforceable in the foreign non-EU jurisdiction.
On the other hand, Maltese journalists and media houses are more exposed to a cross-border suit if the action is filed in another EU Member State as the Brussels and Rome Regulations have largely harmonised private international law among Member States.
The stated aims of these regulations are legal certainty; foreseeability on where a case is heard and which law is applicable; and seamless recognition and enforcement of judgments across Member States which in turn serve to minimise barriers to freedom of movement within the European Union.
However, by its very nature, harmonisation leaves little room for flexibility to counter particular circumstances such as those in Malta, where the media landscape is especially vulnerable due to its small size.
While in general, the prevailing EU regulations have served to facilitate the resolution of jurisdiction and applicable law in cross-border issues of commercial matters, contractual obligations, liability in tort, matrimonial and child custody/maintenance and successions, these same regulations and the relevant case law are inadvertently facilitating forum shopping in matters relating to defamation.
This is mainly because defamation is caught by EU rules determining jurisdiction and enforcement of judgments (the Brussels Regulations) but on the other hand it is excluded from other rules that determine the applicable law (the Rome Regulations).
In addition, rulings by the Court of Justice of the European Union facilitate the possibility of defamation suits being brought in different jurisdiction due to the notion of ‘centre of interests’.
This notion arguably allowed entities such as the concessionaire of the Maltese passport programme to threaten local journalists with defamation suits in the United Kingdom. It does not matter that the defendants are Maltese domiciled and habitually resident in Malta, that the medium concerned is produced and disseminated in Malta to a largely local audience and the subject is related to activities in Malta.
While the reasoning behind these regulations and the related jurisprudence is to ensure equality of arms between an individual plaintiff with limited resources and large multinational media groups, in Malta the reverse holds true: the plaintiffs that threatened cross-border lawsuits have more resources and deeper pockets than the largest media houses in the country combined, let alone individual journalists and bloggers.
This situation is further exacerbated by the fact that the EU Rome Regulations on choice of law specifically exclude matters related to defamation. Returning to the example above, if there was a possibility that applicable law to decide the matter in a foreign court is Maltese law; the maximum damages awarded under Maltese law are far lower than those that could be imposed for example under UK law, thus substantially reducing the attraction of filing an action in a foreign court for the ‘SLAPP-er’ whose sole purpose is cowing a defendant into silence.
However, the Council positions during the proceedings during the promulgation of the Rome Regulation showed that governments of Member States were adamant that defamation should be excluded from the scope of such regulation.
European anti-SLAPP legislation – a sorely needed remedy
As things stand, Brussels Regulations provide a very small window for the Courts of one Member State not to recognise and enforce a judgment emanating from the Court of another Member State, and that window is public policy. A court of one State may refuse to recognise and enforce a judgment of another court from another State if that judgment runs counter to the public policy of the first State.
It may be argued that a defamation suit imposing damages that potentially run into the hundreds of thousands on a Maltese media house would stifle freedom of expression and thus run contrary to Malta’s public policy of upholding fundamental rights. But for that to happen, a Maltese journalist has to defend the case in a foreign court to its conclusion and the cost of mounting a legal defence overseas in and of itself would be too large to meet.
The amendments to the Media and Defamation Act tabled by the Opposition in 2018 were an attempt to subject defamation lawsuits filed abroad to the test of Maltese public policy. But to conduct such a test, the Courts in Malta would invariably be exercising jurisdiction that they do not have, and the Brussels Regulation specifically prohibits courts of Member States to use the test of public policy to alter the rules of jurisdiction.
In shooting down these amendments, Government was quick to point out these issues but sadly, it was content to stop there.
The way forward is very much a question of the political will of the legislator.
While the attempt to address the matter unilaterally in Malta was perhaps a particularly tall order, the heart of the PN MP’s in the House of Representatives was in the right place, showing a genuine willingness to safeguard freedom of expression by protecting journalists and Maltese media houses from threats to their very existence.
In Brussels, Maltese MEPs, David Casa in particular, have been striving to bring to the fore anti-SLAPP legislation on a European level. Even Commissioner Vera Jourova in recent comments, has recognised the need to legislate in this respect.
On the other hand, the Maltese Government has remained totally silent even though Maltese journalists and media houses were forced to take down investigative stories. Not because these stories were incorrect or proven to be defamatory in a court of law, but because of the mere threat of a cross-border legal action was enough to suppress these stories.
If our Government truly cherished freedom of information, it would not countenance private interests with deep pockets and bullying tactics interfering with the exercise of an important fundamental right in a democratic society. It should join forces with MPs, MEPs, journalists and NGOs and actively pursue a European solution to counter this situation once and for all.
Kenneth Xuereb is a journalist and holds a Master of Advocacy degree from the University of Malta. His dissertation focused on the issues that persist following the enactment of the Media and Defamation Act of 2018, including the threat of cross-border defamation suits.