Media reform bills need to be ‘reshaped and redrafted’ – Therese Comodini Cachia

Media Lawyer Therese Comodini Cachia has said that the media reform bills that were presented by the government need to be “reshaped and redrafted.”

A committee was established by the government to come up with proposals as to how the recommendations of the public inquiry into the assassination of journalist Daphne Caruana Galizia could be implemented. It was also given the additional task of reviewing a number of pieces of legislation the government had put forward.

The latter part was the first phase of the committee’s work, and the government presented those bills in Parliament last year. Controversy ensued over the lack of consultation regarding the government bills, and eventually, the Prime Minister agreed to send the proposed pieces of legislation back to the committee for it to hold a public consultation.

Comodini Cachia and Father Joe Borg are the authors of the book entitled “Reforming Malta’s Media System,” which was published in February in light of the ongoing media reforms. The book proposed wide-ranging media reforms for Malta, which include amendments to Malta’s constitution, changes to the control structure of the public broadcaster, and measures to protect against strategic or abusive lawsuits against public participation (SLAPPs).

Comodini Cachia was elected as a Member of the European Parliament in 2014, under the Nationalist Party, and held this post until 2017. Then, in 2017, she contested the general election and was elected as a PN Member of Parliament until the end of that legislature in 2022.

During an interview with The Malta Independent, Comodini Cachia spoke about the media reform bills. Throughout the interview, she heavily scrutinised the bills for not even meeting international standards and spoke about the important role journalists have in a democracy.

Asked how journalists should be recognised in the constitution and what changes should be made, she said: “Journalists need to be recognised for their role in contributing to democracy.”

“We have the European Court under the European convention that has repeatedly, over decades, in every single case repeated this value, that journalists are the watchdogs of our democracy.”

Therefore, she said that what now needs to be entrenched in Malta’s constitution is the idea of journalism as the “fourth pillar of democracy.”

“[The role of a] journalist reflects my freedom of expression and it reflects my right to participate in public life.”

By recognising the value of journalism, she said that we are automatically recognising and giving every individual a meaningful right to participate in public life.

She said that by holding the Prime Minister, the government and institutions accountable, journalists are contributing to that public debate, without which democracy would fail.

Asked whether the media reform bill was enough or whether this was all for show, she said that the media reform bills presented in parliament represented 87% of the recommendations of the committee, “but it did not take on the most meaningful recommendations of the government’s committee at all.”

“The bills as presented and, in part, some recommendations made by the committee, actually are not even in line with international standards and are not even in line with legal analyses that were carried out of those original proposals by experts from the Organisation for Security and Co-operation in Europe (OSCE).”

“The highest standard we need to keep in mind is that we need to abide by international standards. Our journalists deserve nothing less than international standards.”

“Everything” is wrong with the proposed anti-SLAPP law

The media reform bills also include an anti-Strategic Lawsuit Against Public Participation (SLAPP) law which has been under much scrutiny.

The objective of a SLAPP lawsuit is not to redress the plaintiff’s breached legal rights, but to intimidate and harass the target into silence.

Asked what was wrong with the anti-SLAPP law presented in the media reform bill, she said, “Everything. There is nothing in the current legislative draft that can protect our journalists from SLAPP. Absolutely nothing.”

She mentioned how one of the biggest concerns for journalists and media houses is the threat of a SLAPP. The threat of a SLAPP can come “through legal letters which are harassing in nature and aggressive in the way they are written.”

She said that the journalist, who is merely carrying out their duty, is painted as the attacker, whilst the one being investigated is the victim. “That is, I believe, the action that causes the biggest concern.”

In order to control this, she said that you would need a law that makes people “think twice” about not only opening abusive proceedings but also threatening to open abusive proceedings.

“The only way we can bring meaningful change to that culture is by having a good SLAPP law. Now a good SLAPP law means that you need to give the court immediate discretion in recognising the proceedings as being abusive from an early stage, so you need to shape the procedure in a way which gives the judge the discretion of recognising the procedure for the abuse that it is.”

She added that there also needs to be a “dissuasive element,” where if the judge recognises that the law is being abused through SLAPP, then the person should be sanctioned. She said that scholars usually propose that this sanction should be a financial one.

“But I think the most important aspect of an anti-SLAPP law would be the early dismissal of a case. Why? When journalists are threatened with SLAPP or actually face a SLAPP it has a chilling effect, not just on that journalist but all journalists.”

This chilling effect, she explained, is human nature, as journalists would interpret this as being an attack on their reputation that exposes them to risks.

“Our SLAPP regulation needs to at least reach the minimum standards proposed in the Daphne directive by the European Commission, but I would say even those minimum conditions, will start, but not be enough.”

“It’s the abusive element of the process that we’re removing. We’re not removing the right of people to sue for libel, or for compensation because a journalist has failed to abide by journalistic ethics.”

Pressed and asked whether anti-SLAPP provisions would discourage anyone from filing a libel suit against a journalist, she said, “No, the process itself which would recognise abusive proceedings will also need to be respectful of the right to access court and the right to a fair trial.”

SLAPPs do not necessarily have to be filed in the country where a media organisation is situated, for example, but could be filed in foreign jurisdictions with high legal costs to scare people into silence.

She noted that there have been media houses that have been sued abroad, or threatened with being sued abroad.

Asked whether it would be possible for libel suits which are filed abroad not to be recognised locally, she said, “There is the possibility, yes, of having foreign judgements, even thirdcountry judgements, not recognised by our judges.”

“To me, the solution is an easy one. We need to make media freedom and protection from abusive proceedings such as SLAPP proceedings recognised as a matter of public policy.”

Therefore, like this, she said that local judgements will be able to not recognise or execute that foreign judgement.

FOI requests should be a “procedure of last resort”

In the media reform bill, there was no real mention of the Freedom of Information (FOI) requests.

The aim of the Freedom of Information Act is, in essence, a key mechanism which any Maltese or EU national who has been in Malta for five years can utilise to request a particular document or information from any public entity.

As things stand, the process of applying for an FOI is very bureaucratic and the FOI Act has not been respected, she said.

Asked how the FOI procedure may improve, she said that an FOI request should be a “procedure of last resort.”

“The values of democracy and the rule of law, which require transparency and accountability, demand that the authorities are transparent, and therefore, give access to information.”

She pointed out how there are many instances of public officials not replying to journalists’ questions, such as refusing to answer a question when being asked, or directing the journalist to the Communications Officer who chooses not to reply.

“What happens when you are faced with a wall of silence - you end up resorting to the last resort, which is presenting an FOI. That is literally where your request goes to die. It is not only a burdensome and bureaucratic process that is lengthy, but it is lengthened even further by administrative practices.”

She explained that one of the most bizarre procedures of presenting an FOI was the internal review, because although it works in other jurisdictions, it does not work with an FOI. Instead, it just wastes a few more weeks as “there is no internal review that has been sought and accepted by any of our state authorities.”

Following this, the next step would be to go to the Information and Data Protection Commissioner. However, she said that the Commissioner is bound by what the law says, therefore, the practices will take more time.

“I have cases which have lasted more than 18 months, to obtain information. What was valuable information 18 months ago, may not be valuable information anymore.”

She even mentioned how there were instances when the Commissioner would say that the information was published in the government gazette, after months of fighting for an FOI. “No one even has the decency to tell the journalist this is the information published in the government gazette.”

She noted that there have been a few good judgements from the Commissioner, the tribunal and even the court of appeals.

“It’s slow, it’s pedantic and our media houses are really tight on resources.”

The first part of the interview, on constitutional reform, was carried yesterday.