SLAPP the threats, make a good law

For anyone who believes in press freedom, SLAPP (Strategic Law Suits Against Public Participation) are an unacceptable form of intimidation, which use the threat of expensive legal proceedings in other jurisdictions to stop information from being disseminated locally.

The recent case of a threat issued by Henley and Partners on Christmas Eve against The Shift to withdraw an article was a blatant example of this abuse. The threats against other media houses by Pilatus Bank asking them to delete articles published in the past was another blatant attempt to silence the media.

The new media law launched with great fanfare by government specifically seeks to avoid vexatious libels through a clause which limits multiple libels on the same story. As is the case with SLAPP this was a tool used by powerful interests to financially cripple journalists and critics.

The same spirit of the new media law should apply to vexatious threats made through SLAPP.

The fact that a delegation of MEPs addressing the rule of law in Malta has called on the European Commission to consider European legislation on this issue, confirms how serious this issue is, as it risks undermining press freedom as we know it.

Therefore the Opposition is right in presenting a Private Member’s Bill to address this new legal vacuum, which has become all the more urgent because of the influence foreign based companies – some of which with a dodgy reputation – have on local public policy.

We cannot afford a situation where the hiving off of public assets is also accompanied by the hiving off of our freedom of expression to foreign jurisdictions.

It has become impossible to scrutinise government without also scrutinising deals with companies which are perceived to have a finger in the pie.

In this case the Opposition is seeking guarantees for the press, which will stand even if there is a change in government and the tables are turned and the media starts scrutinising the actions of foreign companies perceived to be close to the new administration.

This is the positive constructive spirit which we expect from an Opposition which is in sync with civil society.

This, however, does not underscore the fact that addressing SLAPP can be a legal minefield which needs serious deliberation.

The PN’s approach to the issue is that of defending national sovereignty.

The bill proposes that it shall be a matter of the public policy of Malta that proceedings in respect of any publication, made by a person or entity normally resident or domiciled in or operating within Malta, shall be brought in a Maltese court and that these courts will have exclusive jurisdiction to hear and determine such proceedings “irrespective of whether the publication in question is hosted or otherwise broadcast from servers located outside Malta”.

The proposed amendments would prevent sentences regarding defamation and libel handed down in foreign jurisdictions, from being executed in Malta.

Malta will not be inventing the wheel on this issue. Although forum shopping in defamation cases is a relatively new legal development, the issue is being addressed in other jurisdictions through different ways.

For example in California an anti-SLAPP statute allows you to file a special motion to strike a complaint filed against you based on an “act in furtherance of [your] right of petition or free speech under the United States or California Constitution in connection with a public issue.”

If a court rules in your favor, it will dismiss the plaintiff’s case early in the litigation and award you attorneys’ fees and court costs.

Moreover we should not be afraid to be perceived as agenda setters on a European and global level on such an important issue. In the same way as our country has positively taken the lead on LGBTI issues, it should do the same on press freedom. We at least owe that to slain journalist Daphne Caruana Galizia.

Ultimately in this case it is not just important to enact a law but also to ensure that it is enforceable in foreign jurisdictions where such cases are presented.

Therefore the opposition’s motion should also be seen as an invitation for the input of the best legal minds, civil society and media houses  to provide their expertise to come up with a foolproof text in a reasonable time-frame.

Instead of emphasizing the legal difficulties in implementing such a law as Justice Minister Owen Bonnici did recently, the government should work with the Opposition  to come up with the best legislation possible to address this issue in the most comprehensive and watertight manner. For once we can all unite for a good cause.